Executive Manager for Investigations in the Office of the Public Protector Pona Mogaladi says it was unreasonable for the office to expect senior investigator Abongile Madiba to work under tremendous pressure despite his medical condition.
Madiba, who had suffered a stroke, was one of those who were disciplined and dismissed for dereliction of duty for failing to meet the deadlines on some investigations.
She is one of those who were also fired but was reinstated after successfully challenging her dismissal in court. Mogaladi returned for cross examination on the second day. Mpofu and Mogaladi interacted on whether it was reasonable or not for Madiba to meet his deadlines on investigations.
“You are saying that Mr Madiba should have been spared from this responsibilities because of his health situation. Correct?”, asked Mpofu Mogaladi.
MOGALADI replies: “Correct”
Madiba was reporting to Mogaladi at the time.
MPOFU asked: ” And you were the boss why didn’t you do that?”
MOGALADI: ” I’m talking about the situations, the decisions, they were not within my powers. I’m talking about the support [for] Mr Madiba. When I took over from the time that I was in the branch up until he was suspended, I reduced Mr Madiba’s workload. I even engaged with the CEO and with HR in terms of how we support Mr Madiba. And we continued to support him and my point was raised prior to the period that I joined the branch. And also around the decision to suspend him and the manner in which his disciplinary matter was handled. I was the boss in the unit but I was not in charge of the disciplinary process.”
Medical boarding
The question on why Madiba was not boarded medically came to the fore during cross examination. Mpofu wanted to know whether medical boarding for Madiba who had suffered a stroke was not an option.
MPOFU: ” As a person who’s obviously more compassionate than anybody else, did you say that in this pressured situation Mr Madiba cannot be expected to work under this tremendous amount of pressure, maybe he should be medically boarded or something like that, so that nobody would be asking him for deadlines and things like that? Did you ever do that as his boss?”
MOGALADI: ” I did, but the decision for him to be medically boarded is a decision that he must take, but I did. I engaged, as I stated we had discussions with HR. So I did?
MPOFU: ” Good, and, so while he was still working, was it unreasonable also to expect him to deliver on the work that he was being paid for?
MOGALADI: ” Look, the provisions of the law are very clear that there should have been reasonable accommodation, so for Madiba, it was unreasonable to expect the deadlines as if Mr Madiba was not sick. The minute he became sick the expectations should have changed”
MPOFU: “And the fact that when he was put on a six week deadline that then went over to almost five of six months, you don’t think that he was being accommodated?”
MOGALADI: ” Reasonable accommodation was in relative to either the illness or the disability of the employee. So, if you increase the timeline to six months but you still expect him to deliver like any other person, you don’t put measures in place to support him. For me, it’s not sufficient reasonable accommodation. Let’s say for instance whether you gave Mr Madiba five or six months and he can only use one hand but you expect him to draft a report where he has to lift files and he cannot do that. He cannot page. If he has to page, it means he must stop typing on the computer. So it needs to be reasonable taking into consideration and there need to be a very clear plan to support him”
MPOFU: ” So in your view then, basically he should not have been working in that pressurised environment at all. Correct? ”
MOGALADI: ” Correct”
Employer expectations versus employee’s medical condition
As Mpofu continued to cross examine Mogaladi, the question and answer session on Madiba further triggered a debate on expectations from the Public Protector’s Office against the medical condition of an employee.
MPOFU continues: “And as you correctly point out, he chose to work in that environment for that period. And when I say chose I know I’m not undermining the economic factors that might have played into that decision. But he was placed in a position where he was in charge of certain investigations which are important to the public. Correct? ”
MOGALADI disagreed: “He didn’t choose, he had no option”
MPOFU says: “Yes. And the employer also then had no option but to expect him to deliver on the deliverables once he was in that position. Correct?”
MOGALADI replies: ” No the employer…..I don’t agree that the employer was expected….the employer had the duty in terms of the Labour Relations Act to reasonably accommodate Mr Madiba based on his medical condition.”
MPOFU follows up: “By doing what, by not expecting any deliverable from him?”
MOGALADI: “No”
MPOFU: “Ok. Thanks chair.”
Mpofu concluded before the session went into break.
