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The fierce battle between Siyabonga Gama, managing director of Transnet, and the board of directors of the railroad and freight company is far from over.
On Friday, Justice Graham Moshoana of the Labor Court ruled that he could not prevent the board from returning Gama to the post of general manager, but ordered that the case be submitted to a arbitration.
However, City Press understands that the board does not intend to resort to arbitration and that the board of directors voted in turn Friday night to advance the decision to dismiss Gama.
A source, informed of late votes, announced yesterday that a decision would soon be communicated to Gama about his future at the parastatal.
Following Friday's decision, Gama stated that he had "no choice but to go to the Labor Court to prevent Transnet from terminating my employment contract in violation". its conditions and provisions. We managed today to convince Transnet that they must respect my work contract and the Transnet disciplinary code in my case, and that the parties must submit any dispute to an arbitrator ".
Gama had contacted the Labor Court to demand that Transnet 's board of directors be prevented from acting in accordance with his intention to dismiss him.
READ: Gama goes to court to fight
In his decision, Moshoana stated that "the applicant does not have the right not to be dismissed. The right to be dismissed after following the procedure outlined … has not been specified. The parties are in dispute and their dispute in this respect can only be settled by an arbitrator, as agreed in 2016. For these reasons, I can not prohibit the defendant. "
Moshoana agreed with Gama, saying that it was urgent to hear the case and that "the request remains suspended pending referral to arbitration".
Gama had asked the court to forbid the council to dismiss him and he also asked the court to declare his "notice of dismissal null and void".
The cancellation was sent on October 1st. It followed a letter of intent to suspend, which the commission sent to Gama on August 15.
READ: D-Day for Gama as Transnet's Board digs its foot
In his court documents, Gama cites the Office's letter of intent to return him – in which it is stated that "the information about your conduct has caused the jury to lose confidence in your ability to manage Transnet at higher level and lead according to its corporate culture "- which clearly indicates that the board has already decided to dismiss him without due process and without giving him the opportunity to tell his version of history.
"As a rule, and except in exceptional circumstances, an employee should not be disciplined without first having had the opportunity to express his or her case," he said. written.
Transnet's board of directors accused Gama of causing a breach in the relationship between him and the board of directors during the tender investigation of 1,064 locomotives. Gupta family-related companies received more than 5 billion rand commissions.
The Panel's change of procedure from suspension to termination followed a legal opinion requested from the lawyers of Mncedisi Ndlovu & Sedumedi (MNS) and two labor lawyers, Nazeer Cassim SC and Riaz Itzkin, who indicated that that Gama could be dismissed without notice.
In their opinion, which City Press has seen, the lawyers claim that after verifying Gama's employment contract, Transnet may dismiss him without notice if the reason is related to a serious misconduct, a flagrant breach of performance, a material breach of its obligations or a flagrant breach. negligence.
"Transnet would have the right to terminate Mr. Gama's employment contract on the basis of a breach of trust and a loss of confidence in him.
"This is a reason for dismissal generally recognized by law as adequate and the contract of employment of Mr. Gama does not affect it and recognizes it in fact," says the opinion.
Gama and several of Transnet's senior executives were involved in a misconduct case during the highly inflated locomotive contract. They all denied having done wrong.
The MNS report revealed that the cost of bidding for the construction of 1,064 locomotives had risen from R38.6 billion to R49 billion.
The report revealed that the increase in the cost of bidding for 15.4 billion rand "seems inexplicable, unreasonable and excessive".
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