Bafo Thomas Khanyeza writes that, if the SABC had managed its affairs better, it could have avoided the situation it is in now.
With the pending SABC retrenchments, labour representatives seem to have very strong grounds to argue against the unfairness of these layoffs, which can be reversed should labour representatives succeed.
That's because the Labour Court would have to determine whether, among others, in terms of the Labour Relations Act (LRA) Section 189A par19 (b) & (c), the dismissals were operationally justifiable on rational grounds and whether there was proper consideration of alternatives on the SABC's part. This is very unlikely when one considers the facts.
An employer's right to retrench staff is a double-edged sword.
While an employer has a right to terminate the employee's employment for operational reasons, it has a duty to avert it if possible. Otherwise, such terminations can be considered procedurally deficient, unfair, and thus reversible in terms of the LRA sec 189A par 19 and sec 193. That is because the employees are also fully protected from irrational and arbitrary terminations.
Also, according to recommendation 166 of the International Labour Organisation (ILO):
If one looks at the SABC 2020 annual financial statements, there are several glaring items where the public broadcaster could have easily made massive savings rather than laying off staff. This is not about past mismanagement, but what is happening now.
One issue picked up by the auditor-general as a material irregularity was a R185 million security contract that was irregularly awarded back in 2017 and is still running. The SABC has already paid R112 million towards the contract.
According to the auditor-general's report, "non-compliance is likely to result in a material financial loss as the price of the security service procured from the successful bidder was higher than the price submitted by the bidder that scored the highest preferential points".
Therefore, it could be argued that, had SABC cancelled that contract, which it would have been allowed to do, retrenchments could have easily been avoided. That contract can be considered contrary to common law and therefore an illegal contract, as it is not in the public's interest. The SABC could have cancelled it due to what is called the ex turpi causa rule. As it stands, according to the auditor's report, "the losing bidders instituted a legal action against a public entity".
The 2020 SABC audit report is littered with other damning audit findings, which, if it had been acted upon earlier, would have resulted in more savings. The auditor-general reported that, "the public entity did not effectively implement and monitor action plans during the year to effectively address prior year audit findings on the prevention, detection, and reporting on irregular expenditure". In 2019, the SABC received a qualified audit, it got an adverse opinion in 2017 and 2018.
Imagine how much could have been saved if the broadcaster had complied with internal controls and the Public Finance Management Act (PFMA) or procurement rules. Compare this to how much will be saved if 400 staff are to be laid off. One doesn't think it's even comparable.
If they haven't already done so, the labour representatives should bring an argument that speaks to these deficiencies. They could have very high prospects of having the court overturn these retrenchments in terms of the LRA sec 189A par 19 and sec 193.
- Bafo Thomas Khanyeza is a senior lecturer in the department of accounting at Unisa