Eskom's on-off-on chief executive Brian Molefe.
Brian Molefe filed papers at the the Labour Court in Johannesburg on Monday arguing that his dismissal as Eskom group chief executive is unlawful. Public Enterprises Minister Lynne Brown, he said, had no basis to sack him and was swayed by political motives.
Molefe is seeking urgent relief from the court to set aside his latest unwilling leave from Eskom. His application comes after Brown instructed the Eskom board to sack him.
Brown made the instruction after she was told to do so by an inter-ministerial task team President Jacob Zuma appointed to investigate the board and Molefe’s reinstatement as group chief executive in 2017. He resigned from Eskom in 2016 after accusations were made against him in the public protector’s State of Capture report.
In his affidavit, Molefe said that he was unaware that he could not retire at 50 as per Eskom’s rules and for this reason his reinstatement was fair. He said he had followed a resolution Eskom established in February 2016 that allowed employees to retire if they had worked at the company for 10 or more years.
The resolution had not yet implemented when he resigned and current Eskom rules state that an employee must be at least 55 to access early retirement benefits.
Molefe maintains that because his early retirement was rescinded, his contract with Eskom never ended because it was resumed in May 2017.
“I therefore did not resign from Eskom with my departure having been on account of a puported ‘early retirement’ on terms which could not be placed into effect as a matter of law,” Molefe said in court papers.
“My contract of employment entered into in March 2016, therefore, did not come to an end and I continued to remain employment as group chief executive in terms thereof,” he continued.
After he left Eskom, Molefe was employed as an ANC MP in Parliament – an appointment that could never have been made unless he had left the power utility.
The minister who had no right to fire him
Molefe also argues that the Eskom board could not fire him, because that can only be done by Brown as per a Memorandum of Incorporation that gave Brown such powers in 2016.
But he then goes on to say that not even Brown could legally dismiss him.
“Her conduct amounted to an unlawful repudiation of my contract of employment as she had no legal ground premised on either capacity, operational or misconduct reasons to effect my dismissal but was, in fact, motivated by political considerations, which did not amount to lawful grounds on any possible construction,” Molefe said.
He also said Brown did not give him an opportunity to defend himself and in doing so failed to oblige by the Labour Relations Act.
The sole basis for Molefe’s arguments, it appears, rests on his defence that his original contract of employment was never interrupted despite his five-month absence from Eskom’s offices when he became an MP.
He has asked the court to urgently hear his application because it could affect an application the Democratic Alliance has made against him in the high court in Pretoria. The DA applied to have Molefe’s return to Eskom reviewed, but the announcement that he was then sacked has effectively rendered moot any opposition Molefe has in the matter.
He is now asking the Labour Court to allow him back into Eskom urgently so that he can argue against the DA.