BEMAWU LOGO

SABC SLAMMED WITH YET ANOTHER LEGAL COST ORDER

Another blood nose in court, another cost order against the SABC! 

On 16 August 2019 the Labour Court dismissed an urgent application by the SABC attempting to set aside subpoenas issued to inter alia the GCEO and CFO of the SABC to testify in a CCMA hearing.

The Labour Court awarded cost against the SABC.

Judge Andre van Niekerk ruled in favor of Ayanna Mkhize who was dismissed on the 17th of October 2018.

In his brief judgement van Niekerk said there is no provision in the LRA or any other legislation that confers a general jurisdiction on the Labour court to supervise the manner in which the CCMA exercises  its statutory powers. He dismissed the SABC’s contention that dismissed employees could subpoena witnesses to harass them.

‘He furthermore found that the application by the SABC was not supported by a proper legal basis to set aside the subpoenas.

How much more money will be spent on senseless litigation whilst the SABC Ship continues to sink?

Copy of judgement here

BEMAWU LOGO

FREELANCERS HAVE RIGHTS TOO

Independent Contractors or so-called freelancers are often the most abused regime of “workers” in the media industry in South Africa.

Almost without exception this group of people does not get the normal benefits employees would be entitled to in terms of the Basic Conditions of Employment Act, like paid leave, sick leave, company medical aid and pension and most importantly, security of employment.

Freelancers are by definition excluded by the Labour Relations Act, No.66 of 1995 as employees.

Section 213 of the Labour Relations Act defines an employee as anyone, other than an independent contractor, who works for another person or who assists in conducting the business of an employer.

In an attempt to stop, or at least to minimize the abuse, Section 200A was promulgated.

Section 200A states that, unless the contrary is proven and regardless of the form of the contract, a person is presumed to be an employee if any one of the following circumstances exist:

The manner in which the person works or his/her hours of work is/are subject to the direction or control of another person;

The person forms part of the organisation;

The person has worked for the other person for an average of at least 40 hours per month for the last three months;

The person is economically dependent on the other person ;

The person is provided with tools of trade by the other person; and

The person only provides services to one person.

Freelance contracts are generally very one-sided and in favour of the “employer” and it is generally accepted freelancers can be hired and fired at the whim of the employer.

Freelancers would not have access to the CCMA or Labour Court unless there is a claim of being an employee in terms of Section 200A of the Act.

For the reasons above the SABC, like many employers favour freelance contracts and has thousands of freelancers on their books.

Employers, and the SABC in particular has also been very vocal in respect of discouraging freelancers to join trade unions, on the basis that a freelancer does not have any labour rights.

Fortunately the landscape for freelancers is fast changing.

In a landmark case, freelance journalist and presenter Vuyo Mvoko who was one of the SABC 8, won his case in the Supreme Court of Appeal after his contract was terminated for speaking out against the protest policy of Motsoeneng.

MVOKO’S MATTER

Mr Mvoko was inter alia aggrieved when the SABC adopted a policy in terms of which footage of violent protests would not be shown on television, a decision which resulted in the resignation of Mr Matthews.

As a result of several incidents of political interference at the time, Mr Mvoko decided to turn to the media to offer his reflections of the state of the SABC.

On 6 July 2016 he published an article in The Star.

The article was entitled ‘My hell at the SABC…  ‘In power mongers’ grip’.

The first paragraph read as follows:

The SABC has never been a paragon of a great anything. It has been a work-in-progress, with degrees of success as generations of well-meaning South Africans tackled the extraordinarily and complex task of undoing decades of apartheid misuse of this national asset.

Mr Mvoko criticised the policy referred to above, namely, that violent images would not be broadcast by the SABC.

However, the part of the article that evoked the most outrage on the part of the SABC, was the following:

We are saying there’s no point in doing the right thing by promoting women to leadership positions – only to reduce them to policing duties, or walking around with their cellphones glued to their ears as they take arbitrary instructions on who to put on air.’

This was construed by the SABC as a direct and vicious attack on Ms Maseko.

Mr Mvoko was adamant that in writing the article he had the following objectives:

• to offer his reflections on what was happening at the SABC in relation to the erosion of editorial independence;

• to convey his own first-hand experience of that erosion; to dispel myths about the goings-on at the SABC; and

• to remind the public that there was still time to save the integrity of the SABC.

On 7 July 2016, the day following the publication of the article, Ms Maseko informed Mr Mvoko telephonically that he was required to collect a letter addressed to him.

Mr Molete handed him the letter and said: ‘Don’t crucify me. I just have to give you this letter’.

It is necessary to quote the relevant part of the letter:

It has come to management’s attention that you have allegedly been involved in acts of non-compliance/contravention of your contract which conduct constitutes a material breach of the agreement, relating to the following issues:

– You have brought the name of the SABC into disrepute and also damaging the image of the SABC with the comments/statements in the newspaper article of The Star Newspaper dated 06 July 2016.

Management views your conduct in a very serious light and contemplates terminating the agreement.

However, you are requested to submit written representations as to why the agreement should not be terminated and should you wish to do so, same have to be submitted to writer hereof on or before close of business on Monday 11 July 2016 (16:00).

Furthermore, Management has resolved not to schedule you to render your services as the Independent Contract until this matter is resolved.

Following on that letter Mr Mvoko’s legal representatives wrote to the SABC demanding that he ‘be scheduled’ in terms of his written agreement with the SABC.

The SABC did not comply and Mr Mvoko then turned to the courts for relief.

The SABC, in resisting Mr Mvoko’s application contended, principally, that the agreement (independent contract) on which he relied stipulated that it was the SABC’s prerogative to engage Mr Mvoko’s services ‘as and when required’.

The SABC contended that the agreement itself recognised that Mr Mvoko had no right to insist on being scheduled.

Thus, so it was submitted, Mr Mvoko could not compel specific performance.

As to the suspension of his services, the SABC took the view that it was lawfully done since the agreement provided that in performing his services he was prohibited from engaging in any conduct, behaviour, utterances and the like that, in the reasonable opinion of the SABC, had the effect of bringing the name of the organisation into disrepute or impacting negatively on his relationship with colleagues and the SABC.

The publication of the article in The Star, in the view of the SABC, was a breach of that contractual provision entitling the SABC to suspend his services.

It was adamant that an independent contractor such as Mr Mvoko could not dictate whether to feature television programmes.

Moreover, it warned that if Mr Mvoko were to be granted relief, the court ‘would in fact be prescribing to the respondent what programmes should be featured on television, and who should present them’.

This warning to the court was dramatically presented as follows:

This Court would be dragged into the news room of the respondent.’

It was not for the court, so the SABC stated, to prescribe which means it should employ in performing its functions.

The clause on which particular reliance was placed by the SABC, reads as follows:

The Independent Contractor will be engaged on an “as and when required” basis.’

It had been the practice, both in terms of the present agreement and the one preceding it, for Mr Mvoko to be scheduled to perform tasks in terms of annexure A.

The scheduling appears to have been regular, subject of course to necessary and lawful changes to programmes that fell within management’s prerogative.

The part of the agreement under the heading ‘for office use only’ contemplates services to be regularly provided by Mr Mvoko as a planning and contributing editor.

The annexure, which the agreement specifically recognises as an integral part thereof, clearly contemplates that Mr Mvoko would ‘form part of the Newsroom think tank by contributing to the divisions overall editorial strategic direction’.

This is hardly a description that supports the SABC’s interpretation in relation to the ‘as and when required’ clause.

The clause which gives the SABC the right ‘not to schedule’ the independent contractor, pending a dispute in relation to the right to terminate the agreement, is in line with that construction.

One might rightly ask why one would need to terminate rather than just not schedule an independent contractor’s services.

It is the equivalent of ‘do not call us, we will call you’, or, perhaps more accurately, ‘do not call us and we will not call you’.

All of this explains the practice in relation to the use by the SABC of Mr Mvoko’s services, both in relation to the preceding and present agreement.

The ‘as and when required’ clause has to be read in the restricted manner referred to in the second sentence of this paragraph. The principle of reading the clause within the overall context and contemplating its purpose and business efficacy when applied to the clause presently under consideration renders that result.

In light of the conclusion in the preceding paragraph there is no basis for the warning sounded by the SABC to courts to avoid imposing themselves within the SABC boardroom.

If anything, for reasons that are set out hereunder, the SABC should be careful not to be a law unto itself.

It has to operate within its statutory mandate and, like the rest of us, it has to conduct itself within constitutional parameters.

The SABC’s reliance on clause 13.2 of the agreement read in conjunction with clause 5.4.3 for its right to suspend Mr Mvoko is misplaced.

Clause 13.2 requires an investigation into irregularities on the part of the independent contractor pending the conclusion of which the SABC is entitled to suspend.

The difficulty regarding that part of the SABC’s case is that its conduct, described in detail by Mr Mvoko and which is unrefuted, is what brought it into disrepute.

It behaved in a manner reminiscent of an era which we all would much rather forget. It smacks of high-handedness and of a lack of consideration of the SABC’s role as a national broadcaster.

In this respect, regard should firstly be had to the basic values and principles governing public administration set out in s 195 of the Constitution which provides, amongst others, that services must be provided impartially, fairly, equitably and without bias, and that public administration must be accountable.

In terms of s 195(2) these principles apply to administration in every sphere of government, organs of state and public enterprises.

The highest standards of journalism and of integrity in public administration can rightly be expected of the SABC.

The political interference complained of by Mr Mvoko is, as already pointed out, uncontested.

It is inexcusable and rather than rendering Mr Mvoko liable to disciplinary action it calls for an enquiry into the conduct of the SABC in its role as public broadcaster.

The article in The Star was in the form of a whistle blower exposing the ills at a national institution owned by all of us as citizens.

The criticism allegedly directed at Ms Maseko as a person who was being politically manipulated by others and who responded to political instruction was based on Mr Mvoko’s experiences at the SABC.

The SABC was directed to comply with the written agreement dated 4 April 2016, and to schedule Mr Mvoko, as in the past, to perform his services as set out in annexure A to the agreement and to remunerate him accordingly in relation to the remaining term of the agreement.

The SABC was ordered to pay the applicant’s costs including the costs consequent upon the employment of two counsel.

As if the SABC did not learn from this costly exercise, they embarked on similar conduct recently when Lotus FM station manager Alvin Pillay fired freelance radio presenter Shirdika Pillai for raising concerns about favouritism and other complaints against station management, with management but copying the now fired COO, Mr. Chris Maroleng and CEO Madoda Mxakwe in the email.

Pillai was accused of misconduct and breach of contract and her freelance contract was ended by the SABC.

Pillai lodged a complaint with her trade union BEMAWU and when an exchange of letters and warnings did not pursuade the SABC to review its unlawful decision, the union proceeded with legal action against the SABC.

Assenmacher Attorneys, instructed by BEMAWU issued summons against the SABC on behalf of Pillai in the High Court.

Pillai was paid out for the remainder of her contract and the SABC had to pay the legal cost of BEMAWU.

It is clear that freelancers are not at entirely at the mercy of its masters, and furthermore that freelancers employed in public institutions would enjoy more rights to fair treatment than others not so employed.

Taking a matter to the High Court is a costly exercise, in particular for individuals.

Being a member of a Trade Union like BEMAWU, prepared to take on and represent freelancers, would be a wise decision.

Just a friendly warning – no union will take on members already in trouble. It’s best to join and be a member in good standing which will ensure representation when needed.

BEMAWU LOGO

SARS ADJUST S&T | BEMAWU

The South African Revenue Service (SARS) has set down the daily subsistence allowance for meals and incidental expenses for local and international business travel.

The allowances were determined in terms of the Income Tax Act.

Subsistence allowances are paid to employees over and above their normal salaries.

In terms of local travel, incidental costs will be capped at R134 per day while the costs of meals and incidental costs are pegged at R435 per day.

The notice also contains a list of international destinations with the daily amount allowed for each location.

The relevant currency for each location is also provided. For example, the allowance per day for travel to the United Kingdom is set at 102 British pounds while the daily allowance for Angola stands at 303 United States dollars. Any allowance that falls under this mark will not be taxed.

The new rates, published in Government Gazette 42258, came into effect on 1 March 2019.

BEMAWU LOGO

SABC BOARD | SHORTLIST

  • Gift Buthelezi
  • Mary Papayya 
  • Itani Tseisi
  • Rowan Nicholls
  • Mfanozwele Shozi
  • Nokuzola Ehrens
  • Mmabatho Ramagoshi
  • William Malema Ramoshaba
  • Maria Socikwa
  • Lulama Mokhobo (former CEO)
  • Motshedi Lekalakala
  • Nkosana Mbokana
  • Mathews Mofokeng
  • Mamodupi Mohlala-Molaudzi
  • Jasmina Patel
  • Bernedette Muthien
  • Nakedi Ribane
  • Siphile Buthelezi
  • Sathasivan Cooper
  • David Maimela
  • Lufuno Nevondwe
  • Sembie Danana
  • Chief Livhuwani Matsila
  • Mpiyakhe Mkholo
BEMAWU LOGO

ANOTHER BLOOD-NOSE FOR SABC IN COURT

On 31 December 2018 the GCEO, Mr Madoda Mxakwe dismissed former acting Head of Legal, Ms Nompumelelo Phasa without a hearing – similar to what happened to the SABC 8.

Phasa brought an urgent application in the Labour Court to set aside her unlawful dismissal.

Today the Labour Court ruled in her favour and reinstated her.

The SABC, who employed three (3) advocates were ordered to pay the cost of the application.

This is a classic example of fruitless and wasteful expenditure and we expect the decision makers to be held accountable for this, both financially and otherwise.

This will also be reported to SCOPA and the PCC.

BEMAWU LOGO

R185m SABC security tender was ‘irregular’ – SIU report

A preliminary Special Investigating Unit probe has found that a R185m SABC security tender was irregularly awarded by its interim board and should be set aside.

The SIU says these initial investigations reveal that the “SABC flouted its own procurement policies” in awarding the tender to second-ranked bidder Mafoko Security, which was reportedly R2m more expensive than the highest ranked bidder Mjayeli Security. The tender was for the provision of security services to the SABC over a five-year period.

See full story here

https://www.sowetanlive.co.za/news/south-africa/2018-12-18-r185m-sabc-security-tender-was-irregular-siu-report2/

https://www.sowetanlive.co.za/news/south-africa/2018-12-18-r185m-sabc-security-tender-was-irregular-siu-report2/

BEMAWU LOGO

MYTHS ABOUT THE SABC | HIGH MANAGEMENT LEVELS

One of the reasons cited for the need to retrench at the SABC is the alleged imbalance between ordinary workers and management.

The SABC is using the Peromnes grading (job evaluation) system, solely owned by Deloitte Consulting. Other grading systems include JE Manager, Hay and Paterson.

PEROMNES FACTORS

The Peromnes method is a points scoring method of evaluating jobs. The method examines each job in terms of eight factors. These factors are the different aspects of the job worth. The factors are examined to cover the job’s total content and requirements. Each of the factors will be represented to some degree in all jobs, although to a minimal degree in the case of the most unskilled work. The first six factors are concerned with job content. The last two factors are concerned with job requirements, that is, the basic expectations of an incumbent who will be able to perform the job competently.

The eight factors are as follows:

– Problem solving: examines the quality and complexity of decision-making processes that are demanded in jobs;

– Consequences of error of judgement: probes the effects of adverse decisions on the activities, well-being and prestige of the organisation (or any of its parts), taking into account the controls and checks that may exist to prevent such errors or their recurrence;

– Pressure of work: scrutinises the level of stress inherent in a job;

– Knowledge: measures the level of knowledge required, in operational (not formal qualifications) terms, to perform the job competently;

– Job impact: rates the extent of influence that the job has on other activities, within and outside the organisation.

When rating this factor, points are scored for both internal and external impact. The average of the two is the score that will be used;

– Comprehension: evaluates the requirement of the job in undertaking written and spoken communications;

– Educational qualifications or intelligence level required in the post: measures the essential requirements that are considered, not merely desirable ones; and

– Subsequent training/experience: examines the period necessary to achieve competence in the job by the shortest possible reasonable route of advancement.

All eight factors denote inherent aspects or requirements of jobs. The peripheral matters such as physical working conditions, or supply and demand considerations are not included because they are considered to be very inconsistent. They may vary from place to place and from time to time.

Typical Ratios

A management to staff ratio is calculated by dividing the number of managers in a company or department by the number of employees working in it. Typical staffing ratios range from 4-to-1 for direct reports to a senior manager, to 20-to-1 in an administrative area. For most areas, approximately 10 workers per manager is common.

Span of control is a big determinant, even within the same department. If employees have been in their jobs a long time, the work is easily understood or there is little variation in the type of work, a larger span of control is possible.

The Case for Larger Ratios

Larger ratios are best when managers are experienced and comfortable in their position. They need to be clear in their directions, to reduce one-on-one time with so many employees, and good at cutting through roadblocks. Managers with larger spans need to be speedy decision makers. Or, they need to be willing to delegate authority and not second-guess or override employee decisions.

The Case for Smaller Ratios

Smaller ratios allow more coaching, direction and mentoring. They support new managers, who need to have a small team so they can grow into their role. Getting rid of middle managers also frustrates staff who may then feel there is no room for advancement. Smaller ratios can enhance effectiveness by ensuring that managers aren’t pulled too many ways. Focused managers with small teams often enjoy more time for communicating with their staff, which can help with employee engagement and retention. Communication is critical in matrixed organizations where more time is required to adequately align efforts between departments.

The average HR-to-employee ratio ideally must be 2.57. As staff size increases, however, the HR-to-employee ratio decreases. For example, small organizations had a significantly higher HR-to employee ratio of 3.40, compared with medium and large organizations that had ratios of 1.22 and 1.03 respectively.

SABC STAFF

At the SABC scale codes 407 – 300 are defined as the bargaining unit. These are the workers. From scale code 130 to 110 are management. From time to time employees on scale code 300 are called junior management, but employees on these scale codes are generally specialists.

According to the latest figures provided by the SABC, its management workforce (scale 130 to 110) is made up as follows:

Management @SABC %

Commercial Enterprises – 9.70%
Group Services – 25.53%
MTI – 7.77%
News – 13.37%
Provincial Operations – 7.24%
Radio – 18.34%
SABC Sport – 22.22%
Television – 11.37%
Grand Total – 14.78%

 

85.22% of people working for the SABC are therefore not on managerial level, and not management.

 

Sales Operations –  3.17%
Logistical Services – 6.86%
TV Licences – 6.98%
Radio Broadcast Resources – 4.49%
News Resources – 4.35%
Eastern Cape Operations – 4.00%
Limpopo Operations – 5.26%
Sport Operations – 5.88%
SABC 2  – 7.89%
SABC 3 – 6.25%

PROFESSIONAL OCCUPATIONS

These departments are made up mainly by professional occupations, like lawyers and Risk Specialists. To properly reward them, they are put on managerial scale codes, which will match their pay bracket, but without being a manager.

Governance Risk and Assurance –  63.16%
Legal Services – 57.89%
Market Intelligence –  57.14%
Office of the GE  – 66.67%

THE 130 SCALE CODES

This scale code is mainly used to match salary brackets of specialists, like Assignment Editors who has no people reporting to them as such. They are therefore not managers in the real sense, but being appointed on this managerial scale code to match their salaries. There are 268 employees on this scale code.

If they are excluded from the calculation of management vs staff, the percentage management vs staff drops to 6.64%, which is in fact closest to the real situation at the SABC.

 

The SABC employs 3296 employees.

The staff to management ratio is 6 to 1, and if the scale code 130 is removed from the total of managers, the ratio increase to 15 to 1, that is 1 manager for every 15 employees. This is well within the requirements of a normal organisation.

BEMAWU LOGO

SABC SPENT MILLIONS ON ANC BIRTHDAY BASH |BEMAWU

The SABC has spent more on the ANC’s annual January 8 statement than what was spent covering the budget speech (R2 million), World Aids Day (R1.2 million), and Human Rights Day coverage with R1.3 million spent on coverage.

Full story here…

https://citizen.co.za/news/south-africa/2046213/da-slams-sabc-for-millions-spent-covering-anc-birthday-bash/

BEMAWU LOGO

2 SABC BOARD MEMBERS RESIGNED | BEMAWU

Johannesburg – Clarity has been sought to establish whether a probe into a R185 million security tender allegedly awarded to a company that was ranked second in the bidding process has forced two SABC board members to resign.

The state broadcaster has been rocked by the sudden resignations of Khanyisile Kweyama and John Matisson from the SABC’s board, placing strain on a board that was already short of four members who left during the course of the year.

Full story here.

https://www.iol.co.za/news/politics/two-sabc-board-members-resign-as-questions-over-tender-rage-18387768

BEMAWU LOGO

3 SABC BOARD MEMBERS RESIGNED? | TWITTER REACTED

Late last night unconfirmed reports surface on Twitter that three SABC Board members have resigned.

This is how Twitter responded.