SABC vindicated for axing popular DJ Nigel Pierce
DJ NIGEL Pierce, who was axed three years ago after hosting the Good Hope FM afternoon show, has lost his legal bid to be reinstated.
The Labour Court, sitting in Cape Town, found that Gavin Goliath, better known as DJ Nigel Pierce, was not a permanent employee of the SABC and that the employer was in its rights when it ended his contract.
It was found that, as a freelancer, he did not have a permanent contract. Goliath, however, did not see it this way. When he was axed, he turned to the CCMA, which ruled against him. Aggrieved with this finding, he took the matter to the court, where he also now lost.
He maintained that his dismissal was unfair and that he regarded himself as a permanent employee, although his contract was renewed year-to- year.
The Nigel Pierce Show on Radio Good Hope FM ran for three hours a day over a five-day week. He was paid an hourly rate for the time his programme was on air.
The SABC argued that Goliath was not an employee, but rather an independent contractor.
The commissioner earlier found he was not under the supervision or control of the station for the presentation and production of his work. He was not obliged to obey any orders of the SABC, as represented by the management of the station, in regard to the manner in which he had to work.
He was also not subject to the SABC’S disciplinary code nor entitled to leave. He was permitted to engage in other paid work as long as it was not in competition with the station.
But during his recent review application to the Labour Court,
Goliath argued that the clauses, which described him as an independent contractor, were a sham and invalid as the relationship between him and the SABC was one of “disguised employment”.
Goliath also contended that the station had control over the content of his show, as well as over the manner in which the radio programmes were to be performed.
Examples used by Goliath to show control were; that he was instructed not to conduct an interview with Dr Eve (a sexologist), it was recommended that he remove certain “inappropriate” content from his social media, he was advised to watch his language on air, and he was prevented from saying certain things.
But the Labour Court said, based on the evaluation of all the facts, it was satisfied that Goliath was not an employee but was engaged to deliver a daily show bearing the stamp of his radio personality and within the ambit of the type of programme the station required, subject also to the constraints of public broadcasting regulation and commitments to sponsors.
The choice of themes or topics for each show was the result of a collaborative process between himself and the station. Goliath was chiefly responsible for the preparation of material for each slot and how it would run. It was expressly acknowledged he could engage in other work and the limitations on the type of other work he could perform were only constrained by the requirement he did not do similar public broadcasting for another station and that his other work did not compromise the image of The Nigel Pierce Show or the station.
Even if he did dedicate most of his time to The Nigel Pierce Show, there was no evidence he wanted to do other work, and the time he spent on preparation was more likely to have been because he was particularly dedicated and diligent and did not wish to pursue other activities, the court concluded in turning down his application.