During his testimony before the commission on Wednesday
Brian Molefe, the resigned/retired/returned/fired chief executive of Eskom (who may have been on unpaid leave while serving in Parliament), will have to wait for the high court to figure out that farce before he is allowed to challenge Eskom on unfair dismissal, the labour court said on Tuesday.
It also awarded costs against him, for the second time in two weeks.
Molefe had vigorously argued that he should be allowed to challenge what he insists was his firing from Eskom in early June. This is a right open to every employee, he told the labour court in Johannesburg last week, regardless of what is happening in the high court.
Judge Connie Prinsloo disagreed.
“The approach Molefe wants this court to take by dealing with the lawfulness of his dismissal before it is decided whether he was lawfully employed, will amount to stepping into a minefield of undecided but relevant and related issues pending before the high court,” Prinsloo said in a written judgment handed down on Tuesday morning.
She ordered that Molefe only be allowed to come back to the labour court once the high court in Pretoria had delivered judgment in the case centred on him.
In that Pretoria court the Democratic Alliance and Economic Freedom Fighters (EFF) are due to argue that Molefe resigned from Eskom in late 2016 and could never have legally returned to his job in May, not even after his R30-million golden handshake was reversed.
The two political parties had approached the high court to deal with that issue before Molefe was fired, in early June, on the order of Public Enterprises Minister Lynne Brown.
That high court matter had to take precedence, Prinsloo said.
“The question which this court is called upon to decided, namely whether Molefe was unlawfully dismissed, cannot be decided before a determination is made on whether Molefe was lawfully employed,” Prinsloo said in her written judgment.
Molefe had the right to approach the labour court, Prinsloo said, but he had also had the opportunity to take his complaint of unfair dismissal to the high court, where the status of his employment was already under consideration. So, she said, he must accept that his refusal to go to the high court “has consequences”.
Last week Molefe argued that the DA and EFF should not be allowed to intervene in his labour court matter, because his relationship with his employer was not the business of political parties. Prinsloo dismissed Molefe’s opposition to the inclusion of the political parties with costs.
The day after that defeat Molefe approached the other parties to suggest his dismissal be taken to arbitration. The other parties declined. Molefe then argued that Prinsloo should refer his matter to a full trial, with the cross-examination of witnesses, saying he wanted to interrogate Brown on her allegations of his involvement in fraud.
On Tuesday Prinsloo dismissed that application, again with costs awarded against Molefe.
“In my view no case has been made out for this application to be referred to trial,” she said.
Lawyers for the various parties are due to meet in early August to figure out the timing of the high court hearing.