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Labour court rules against ambassador



Ambassador Nozipho Mxakato-Diseko has dragged her employer, the department of international relations and co-operation, to the labour court because she refuses to reappoint her subordinate.

Just after being asked to submit reasons why she should not be charged with insubordination, the ambassador approached the labour court on an urgent basis for an interim interdict. This would stop the department from instigating any disciplinary proceedings against her, pending the finalisation of an application that she has not yet lodged.

Mxakato-Diseko wants to lodge a case that would set aside the agreement reached by the department to reappoint Zinhle Nkosi — the junior employee that she fired.

But she has lost her case for an interim interdict. In the ruling, delivered on October 15, Judge Edwin Tlhotlhalemaje called this a peculiar case as it arises from Mxakato-Diseko’s refusal to reinstate Nkosi, even after the department reached a settlement for her to return to work.

Department of international relations and co-operation spokesperson Clayson Monyela was sent questions two weeks ago, but had not responded by the time of writing.

Questions to the office of the ambassador similarly went unanswered.

In February, the Mail & Guardian reported that Mxakato-Diseko, the South African ambassador to the United Nations in Geneva, allegedly fired Nkosi in August last year.

The M&G reported that Bheki Ntshalintshali, general secretary of labour federation Cosatu, and Mthunzi Mdwaba, the spokesperson for the International Organisation of Employers — which represents government employers and businesses at the UN in Geneva — wrote to former international relations and co-operation minister Lindiwe Sisulu.

In their letter, they expressed “serious concern” about the treatment and working conditions of staff in Geneva. “We feel this has to be urgently attended to as it has the potential to embarrass our president and country.”

In another letter seen by the M&G, the dismissed employee — Nkosi, a consular clerk — states that in August she was fired on the spot for not going to work while sick, although she claims she had a doctor’s note excusing her.

She states that she was given 10 minutes to remove her belongings from the building, according to a letter she wrote to Mxakato-Diseko asking for clarification about why she was fired. “I was escorted with my belongings like a criminal out of the building of the permanent mission of South Africa to the United Nations office at Geneva. I would like to formally express that I find the manner in which I was dismissed both procedurally and substantively unfair.”

After the article by the M&G, the department of international relations and co-operations sent a team to Geneva to investigate numerous allegations of mistreatment of staff by Mxakato-Diseko.

She has since proceeded with legal action against the M&G and, in papers filed, has said “the process that was followed relating to such employee’s dismissal was the correct process according to the applicable process which relates to locally recruited personnel in Geneva”.

Meanwhile, the M&G understands that one of the recommendations from the investigation was for the ambassador to reinstate Nkosi.

This has not happened.Instead, according to the judgment by Tlhotlhalemaje, the department has asked Mxakato-Diseko to sign a settlement agreement with Nkosi and reinstate her.

When the ambassador refused, international relations and co-operation director general Kgabo Mahoai tried to send another delegation to Geneva, but Mxakato-Diseko lodged a grievance against him.

The judgment reads: “As is apparent from her averments in her pleadings, the applicant (Mxakato-Diseko) is clearly not willing to reinstate Nkosi. As to how the dismissal of Nkosi came to the attention of the media is not for the court to speculate and I fail to appreciate how the applicant’s legal squabbles with the media have anything to do with this court or the relief she seeks.”

According to Tlhotlhalemaje, on August 30, Mahoai sent a letter to Mxakato-Diseko giving her five days to explain why the department should not charge her for insubordination for not following orders to reinstate Nkosi.

The ambassador then decided to challenge the agreement reached by the department, but wanted to first ensure that it does not continue with disciplinary proceedings against her in the meanwhile.

Mxakato-Diseko claimed that there was “a reasonable harm” if the disciplinary action proceeded before she tested the lawfulness of the agreement between the department and Nkosi. She added in her pleadings that the media would also get wind of her disciplinary hearings.

“She [Mxakato-Diseko] was currently involved in a defamation action against a local newspaper [the M&G] flowing from the publication of two articles in which Nkosi’s dismissal featured and …should she be disciplined it was likely that news of any such process would be leaked to the media,” Mxakato-Diseko contended.

But the court found that there was no case and that “this application was clearly ill-considered”.

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Athandiwe Saba
Athandiwe Saba

Athandiwe Saba is a multi award-winning journalist who is passionate about data, human interest issues, governance and everything that isn’t on social media. She is an author, an avid reader and trying to find the answer to the perfect balance between investigative journalism, online audiences and the decline in newspaper sales. It’s a rough world and a rewarding profession.

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