Amatola Water committed unfair labour practice at the behest of human settlements minister Lindiwe Sisulu in its suspension of Amatola Water board CEO Vuyo Zitumane.
A ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA) made on Tuesday declared the decision unfair because Zitumane was suspended at the behest of Sisulu, a third party.
She was suspended on April 28 amid a department investigation into allegations against her that included maladministration at Amatola Water.
Two weeks later, on May 12, Zitumane took the matter to the CCMA.
The CCMA has now ruled that Zitumane must be back at work on Monday, August 17. It also instructed the department to pay her R736,000, which includes an annual bonus of R161,000.
CCMA commissioner Mxolisi Nduzulwana has ordered that R575,000 — equivalent to three months of Zitumane's salary — be paid to her. Her board-approved bonus, which was not paid in June, should also be paid.
Zitumane, together with Phineas Legodi, her counterpart at Limpopo’s Lepelle Northern Water, were suspended in April amid allegations of maladministration.
Both Zitumane and Legodi were later investigated by two private investigation firms, ORCA and Open Water Advanced Risk Solutions.
ORCA was appointed on April 6 and Open Water on April 12. Both companies were appointed by Sisulu and had similar terms of reference.
Their mandate was to investigate the affairs and financial positions of the water boards.
According to Zitumane's lawyer, Java Mama, neither of the investigation reports — believed to have been finalised — have been made public.
Mama said Zitumane was looking forward to returning to work.
“Ms Zitumane has noted the award in her favour with humility. She regrets, though, that her victory has come at a cost to the finite resources of Amatola Water. She hopes the award will send a chilling message against irregular pursuit of disciplinary processes,” Mama said.
The arbitration award ruling, which has been seen by DispatchLIVE, says: “The suspension of Ms Vuyo Zitumane instituted on 28 April 2020 is declared unfair and that Amatola Water Board by subjecting Ms Vuyo Zitumane to a suspension at the behest of a third party, the Minister of Housing Settlements, Water and Sanitation, committed an unfair labour practice relating to unfair suspension.”
“The suspension of Zitumane is hereby uplifted and Amatola Water Board is ordered to allow Zitumane to resume her duties on Monday 17 in terms of her contract of employment.”
Department spokesperson Yonela Diko said Sisulu has noted the outcome of the CCMA decision.
“The minister is taking legal advice on the aspects of the order as it cites her name suffice to make the following remarks. The minister wants to make it clear that Amatola Water Board is a legal entity that conducts its business as a juristic person, with its own board, able to hire, suspend or fire its employees independently as an entity,” Diko said.
“The minister therefore does not suspend, hire or fire employees of a water board; those remain solely the tasks of the board.”
He said the board reported to Sisulu and when they informed her of possible maladministration within the entity and its operations, led by Zitumane, Sisulu then ordered an investigation as per Section 45 of the Water Services Act.
“It would still be the board that decides on the fate of employees given whatever findings of those investigations.”
At the time of her suspension, Zitumane said she believed she was being targeted for her refusal to break supply chain regulations despite pressure from the minister and her advisers.
Nduzulwana said in the ruling he was tasked with determining whether the employer committed an unfair labour practice relating to the suspension of Zitumane.
The matter was postponed several times and the reason for the postponement, according to the ruling, was that the shareholder (Sisulu) “had decided to centralise litigation matters relating to the Chief Executive in her office”.
Nduzulwana said there was no indication in the letter (sent to CCMA arbitration by Amatola Water lawyers) as to the basis on which Sisulu took decisions for the employer and the date on which she decided to centralise litigation matters relating to the employee.
“The employee is not employed by the minister but by the employer ... There is no basis in law on which the minister can dictate to the board which attorneys shall represent the employer at the arbitration and that litigation concerning the employee will be centralised to the minister's office,” he said.
Amatola Water spokesperson Nosisa Sogayise said Amatola Water was aware of the CCMA decision. “We have recently received it and we are now studying an outcome,” she said. -DispatchLIVE
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