Dismissed CTA mechanic wins against PSPF
MBABANE – A dismissed CTA motor mechanic has won his case against PSPF in the Supreme Court, after his dues were paid without government’s contribution.
Alfred Maia was dismissed by the Civil Service Commission (CSC) through a letter dated November 11, 2011, after a disciplinary hearing. This happened while criminal proceedings were pending at the magistrates court. According to General Order A 909 (2), the dismissal could not have been legal.
In 2012, Maia filed an application at the Industrial Court, challenging his dismissal as unfair or unlawful. He demanded reinstatement or maximum compensation for unfair dismissal, which would include severance and additional notice pay amounting to E101 404.41.
In 2015, after three years, the mechanic demanded from the Public Service Pensions Fund (PSPF), his contribution to the fund. That was expected, because at this time, the dismissal letter from CSC was in place and operational and the application to the Industrial Court challenging it had been stalled for the past three years.
In October 2017, since there appeared to be no end in sight, government and Maia concluded a deed of settlement, effectively removing the matter from the court. The court was expected to pronounce on the lawfulness or unlawfulness of the dismissal.
Under the settlement, government paid the full amount in terms of suit for unfair dismissal. The full compensation paid by government included notice and severance pay, which was payable under Section 16 of the Industrial Relations Act, 2000.
After government had given in to the compensatory claim for unlawful or unfair dismissal, Maia wrote to the PSPF in 2017, claiming to be paid his pension without government’s contribution.
Refused
PSPF is said to have refused to pay, citing Regulation 13 of the Public Service Pensions Regulations as the reason for the refusal to pay government’s contribution.
The motor mechanic approached the court regarding PSPF’s refusal to pay him the government’s contribution.
The High Court ruled in PSPF’s favour and Maia went to the Supreme Court. He also challenged his dismissal at the Industrial Court and, according to the Supreme Court; government could not provide evidence of the misconduct of alleged theft of government property. Government then opted for a settlement out of court. The Deed of Settlement was dated October 6, 2017.
Government, according to the court, must be taken to have realised the error that it dismissed Maia when it did not have tangible evidence of his wrongdoing. “Had it had the evidence, it would have stuck to its guns. The lack of evidence manifests itself first in the criminal case and later when the CSC’s decision is challenged at the Industrial Court, where government decides to pay compensation,” said Supreme Court Judge Sabelo Matsebula.
The court concluded that Regulation 13 of the PSPF Fund Regulations, 1993 only applied to fair and lawful dismissals. The court also concluded that the regulation did not apply to unfair and automatically unfair dismissals, in line with the events and consequences as provided for under Section 6 of the Industrial Relations Act, 2000.
Regulation 13 provides that where an employee has been dismissed or forced to retire following a disciplinary hearing, he is entitled only to his contribution to PSPF. He forfeits his employer’s contribution. Maia’s dismissal, according to the court, was fairly and correctly captured or evidenced in and by the Deed of Settlement between government and Maia.
The Supreme Court went on to allow Maia’s appeal and set aside the decision of the High Court. The court awarded Maia costs. Judge Matsebula heard the matter with Judge Phesheya Dlamini and Judge Mbutfo Mamba.
Dissenting
However, Judge Mamba issued a dissenting judgment. Among other things, Judge Mamba said Maia did not seek a declaration of Regulation to be unconstitutional.
Also, the judge said where, for whatever reason, specific portions or components of the contributions were not due to the public officer, this could hardly be called his benefits. “They are simply not due to him, or he is disentitled to have these accrued to him. This ground of appeal must be dismissed. This equally applies to the third ground of appeal. The constitutional issue raised was irrelevant and was cursorily raised and there was no prayer for a declaratory order,” said Judge Mamba.
Further, Judge Mamba said once the PSPF Board was aware there was a challenge to a dismissal, it was incumbent upon the Board to enquire or investigate and decide whether a member was actually dismissed or not, and whether the dismissal had been reversed by a court or through agreements.
The PSPF is expected to be fair and just to their member, said the judge. According to Judge Mamba, Section 4 (1) (d) of the Order allows the Board to decide on pertinent matters before it.
“I refuse to believe that the Board functions like a programmed robot. Had the Board enquired after being aware that the dismissal was being or had been challenged, the respondent (PSPF) would be standing on a solid ground because they would have been in possession of a final response from government after the latter had signed a Deed of Settlement with the appellant (Maia),” said the judge.
By any stretch of statute interpretation, according to Judge Mamba, PSPF was not empowered to implement unlawful instructions or instructions based on a retracted decision.
The judge said the retraction emanated from the Deed of Settlement, where government, instead of standing its ground on dismissal, offered to pay and compensate for an unfair dismissal. He also stated that the Industrial Relations Act, 2000 was applicable to Maia’s matter and Section 16 was relevant to guide this court.
This section, said the court, tells the Industrial Court what should happen in cases of dismissals, that is, unfair dismissals and automatically unfair dismissals.
The judge also stated that, if indeed the Industrial Court declared the dismissal unlawful, then there was no need to make this declaration in the appeal. Judge Mamba dismissed Maia’s appeal with costs.