Cadre deployment records could spark major labour disputes in South Africa

After the ANC hands over all documents relating to its cadre deployment committee dating back to 2013, organs of state as well as state owned enterprises (SOEs) could face massive legal battles relating to unfair labour practices and discrimination.

These government entities could be referred to Bargaining Councils and the Commission for Conciliation, Mediation and Arbitration (CCMA).

The Constitutional Court’s dismissal of the ANC’s application to keep its cadre deployment records private saw the apex court order the ruling party to hand over all minutes, CVs, email threads, WhatsApp discussions and other relevant documentation relating to its cadre deployment committee by Monday, 19 February.

Labour dispute executive at ENS Africa, Jan Norval said that the “documents are therefore likely to be carefully scrutinised by unsuccessful public service candidates, looking to see whether their application for a position was impacted by the decisions of the Deployment Committee,” and could claim unfair labour practices (based on promotion) and discrimination to Bargaining Councils or the CCMA.

The State Capture Commission Report, which had access to some of these records, said, “many minutes scrutinised by the Commission show that the Committee did consider loyalty and party membership when evaluating candidates.”

“This would give an unfair advantage to ANC members, which would effectively contravene section 197(3) of the Constitution, which states that ‘No employee of the public service may be favoured or prejudiced only because that person supports a particular party or cause,” added the report.

There is currently a pending application in the High Court to have cadre deployment declared unlawful.

“Should this application be successful, the future employment of persons implicated by the Disclosure Documents may come into question,” said Norval.  

However, if cadre deployment is declared unlawful, employers still need to consider the fairness of any dismissal.

Labour Relations Act provides three reasons for a fair dismissal: misconduct, incapacity and operational requirements.

“If an employee’s employment is connected to the Disclosure Documents and that employee can perform their duties satisfactorily, then they cannot be fairly dismissed for incapacity,” said Norval.

However, Norval said, “if the employee was somehow involved in his appointment through the Deployment Committee, and not just an innocent beneficiary of the appointment, then a dismissal for misconduct could be fair.”

The Disclosure Documents may lead to employment disputes for Organs of State and SOEs. Employers must prove fair appointments to implicated positions. Any terminations or declaration of unlawful cadre employment requires lawful and fair dismissal proof.

Read: Constitutional Court throws out ANC’s cadre deployment appeal