When 20th century French dramatist Jean Anouilh crafted his famous quote “Nobody has a more sacred obligation to obey the law than those who make the law”, he couldn’t have had the ANC in mind.
From a labour law point of view, the dismissal of uMkhonto weSizwe Military Veterans Association (MKMVA) spokesperson Carl Niehaus by the ANC is not only unprocedural and unfair, it is also illegal. Niehaus, in his wisdom, is also correct to call it “draconian” as well.
The ANC has an option to use its disciplinary code of conduct to deal with Niehaus by charging him with misconduct as a party member and not an employee, which could still achieve the same end. But it opted for the dramatic – firing him on the spot.
His dismissal is both a labour and a political issue as the man is a vocal opponent of President Cyril Ramaphosa and post-Nasrec party leadership with a special ally of Jacob Zuma.
Political undertones in the matter include a likelihood that his summary dismissal had an ulterior motive. The Luthuli House bosses could not wait to get rid of a “rebel” who had become a thorn on the side of ANC top brass.
Niehaus made no secret about his dislike for Ramaphosa and the Top 6, except suspended secretary-general Ace Magashule, who hired him. He is front-man for the so-called “Hands-off-Zuma” campaign and a consistent mouthpiece of the Radical Economic Transformation forces.
Labour law expert, founder and MD of Molatudi Attorneys, Osborne Molatudi, said as a labour relations issue, the Niehaus matter hinged on three aspects which any adjudicator would consider when assessing the matter.
It would consider whether the ANC code of conduct does make provision for summary dismissal in a case of this nature and, if so, under what circumstances.
Second, the Labour Relations Act (LRA) Code of Good Practice require that a hearing be conducted before a dismissal is effected against an employee without expressly indicating whether it should be physical or not.
“However, case law principles and the LRA code emphasise that an employee should not, as a matter of fairness and equity, be dismissed without a hearing, this inclusive of being given sufficient/reasonable opportunity to respond to the allegations against him/her,” Molatudi said.
Lastly, the CCMA or the labour court would consider whether the two-and-a-half hours’ notice the ANC gave to Niehaus was sufficient and justified.
“Remember this is not about Niehaus as a political person but a matter of relationship between an employer and an employee,” Molatudi said.
He said the fact that Niehaus was on two or three warnings before, could have exacerbated his case to warrant a summary dismissal.
ANC general manager Febe Potgieter gave him until today to pack his belongings and leave the party headquarters.
An irate Niehaus responded with a hard-hitting letter, acknowledging penning the media statement which stated his intention to lay criminal charges against the ANC for failing to pay staff salaries. He also accused the party of contravening the Unemployment Insurance Fund Act, Pension Act, Pay-As-You-Earn regulations and the Tax Act as it failed to hand over deductions to the state.
But Niehaus is not taking it lying down, indicating he will challenge the legality and procedure of his dismissal.
He has a strong case against the ANC, whose blunder could let him off the hook, should he approach the CCMA or the labour court.