Arbitration ‘unlikely’ to lead to Gama’s reinstatement, says Transnet board
Axed Transnet CEO Siyabonga Gama is unlikely to be reinstated if the dispute between him and the state-owned entity goes to arbitration.
This is according to an affidavit by Transnet board chair Popo Molefe, filed in the Labour Court on Thursday, in response to Gama’s application to have the termination of his employment contract overturned.
Gama is asking the court to find that the board was in contempt of court after it took the decision on Sunday to end his contract with six months’ notice.
This was after the same court last week stayed an application by Gama to interdict the board from taking the decision to fire him. The application was stayed pending the outcome of arbitration.
However, the board decided to go ahead with the termination of his contract, saying the court order did not prohibit it from doing so.
Molefe, in the court papers and on behalf of his fellow board members, said the CEO was the “brain and nerve centre” of a company and if there was a loss of confidence in their ability and integrity, resulting in their removal, courts did not intervene to reinstate them.
“The board has lost trust and confidence in Mr Gama’s ability to manage Transnet in light of the information set out in the 28 September notice and in the climate of distrust,” he said.
In September, the board gave Gama until October 15 to give reasons why his contract should not be terminated.
The board said he did not do so, so it took the decision to go ahead with the termination.
“As chairman of the board, I am required to liaise constantly with Mr Gama about strategic operational matters. I do not trust him,” Molefe said.
I do not trust himTransnet board chairman Popo Molefe on CEO Siyabonga Gama
He said if Gama was able to describe the dispute between himself and Transnet clearly, the board would be willing to go to expedited arbitration. That was also dependent on whether the board was contractually required to hold a disciplinary hearing for termination for a breakdown in trust and confidence or for misconduct
The board did not terminate Gama’s contract because of misconduct, Molefe said.
“If Mr Gama succeeds in persuading the arbitrator that his employment contract prescribes a disciplinary hearing before termination on notice for a breakdown in trust and confidence, he will not succeed in obtaining reinstatement,” he said.
“I am advised that specific performance in the form of reinstatement is not considered appropriate where there is a breakdown of trust and confidence between a senior executive leader of a company and its board.”
Molefe said contractual damages were considered appropriate.
The Transnet board will ask the court to dismiss the contempt application lodged by Gama because there was no judgment interdicting it from terminating his employment contract on notice.
Gama has asked that the matter be heard on Thursday.