Public sector settlement agreements: employer accountable to Labour Court

Should an employer in the public sector be held accountable to the Labour Court to explain why it settled a claim of alleged unfair ‘dismissal’ by an 80-year old specialist psychiatrist who had been employed for 40 years ?

Assuming that the reason for termination was based on operational requirements is a settlement of 24 months compensation against public policy ?    Is it ‘just and equitable’ in terms of the Labour Relations Act 66 of 1995 ?

On 18 May 2010 in Lind v KwaZulu-Natal Department of Health [2010] JOL 25836 (LC) Judge Pillay allowed the settlement agreement to be made an order of court but directed the employer to answer 15 questions, relating to the decision to settle the claim, before 30 June 2010.

The questions were the following:

(a)     Did Ms Findlay notify the employee of his retrenchment?

(b)     Who supervised Ms Findlay or any other person who was the employee’s immediate supervisor who notified him of his retrenchment?

(c)     When did Ms Findlay leave the department?

(d)     Who supplied the legal representatives with information to plead that the department had complied with the LRA?

(e)     Whoever provided such information to the legal representatives to prepare the statement of defence was untruthful, negligent, careless or perhaps even corrupt.   What steps has the department taken to call such officials to account for the incorrect information they supplied the department’s representatives?

(f)      Who mandated the settlement that is made an order of this Court?

(g)     On what basis did the department agree to pay 24 months’ compensation?

(h)     Why did the department’s officials fear that the Labour Court might reinstate the employee when:

(i)      the unit had closed down,

(ii)     the employee was employed on sessional contracts of not more than a year each time,

(iii)    the employee was 80 years old,

(iv)    the hospital continued to hold patients for only 72 hours observation before transferring them to Town Hill Hospital?

(i)      Why did the department not terminate employment by paying the employee for the balance of the duration of his sessional contract?

(j)      Why did the department renew his sessional contract for a year when it had decided in December 2006 to close down the unit which it did in April 2007?

(k)     Why was the employee’s sessional contract renewed orally?

(l)      Is it lawful for the department to renew contracts of employment of public employees orally?

(m)    What steps has the department taken to improve its efficiency and accountability to eliminate the kind of waste of public resources evidenced in this case?

(n)     Can the department recover its losses from any individuals and, if not, why not?

(o)     Why did the department not tender with prejudice to pay the employee a lesser amount when it was instructed to defend the matter or soon thereafter when it commenced settlement negotiations?

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