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Whistleblower Suzanne Daniels wins case against Eskom, gets her job back

2018-03-08 17:15

The Eskom executive who blew the lid on the Guptas’ involvement in state capture at the parastatal has been vindicated.

Not only has the company been instructed to reinstate Suzanne Daniels, but she is also entitled to five months’ salary.

Daniels, who is Eskom’s group executive for legal and compliance, has won her case at the CCMA against the power utility.

Commissioner Prince Kekana said the decision to suspend Daniels was an unfair labour practice, and set it aside.

Eskom was ordered to uplift the suspension with immediate effect and take Daniels back into its employ with effect from March 19.

Eskom was also ordered to pay Daniels compensation equivalent to five months’ remuneration for the unfair suspension.

There were two charges against Daniels – one relating to payments that Eskom made to McKinsey/Trillian, which the Hawks recently declared criminal and the other charge relating to a team-building getaway at Kievits Kroon, outside Pretoria.

Kekana dismissed both charges against Daniels, who was suspended in October 2017. In a scathing report, he said her prolonged suspension “was protracted and more punitive than being precautionary”.

“In determining the value of the compensation, consideration should be taken of the applicant’s high-profile position, the resultant damage to her reputation, as well as the effect thereof on both her well-being and that of her family. The duration of her suspension and the continuing unfairness deserves a substantial award of compensation,” said Kekana.

He found that there was no basis for the prolonged suspension and Eskom “deserved censure for this unfair conduct”.

“The suspension was humiliating and impacted her reputation negatively. The suspension impaired her dignity,” he said.

Daniels testified at the CCMA hearing that, in July 2017, interim group chief executive Johnny Dladla took a decision to appoint Bowman Gilfillan Attorneys to investigate payments that Eskom made to McKinsey and Trillian.

McKinsey was contracted by Eskom to consult on the power utility’s turnaround strategy.

Eskom paid McKinsey R1 billion for the contract and an additional R564 million was paid to Trillian for additional contract work. The attorney’s report, dated August 1 2017, implicated seven senior executives, linking them to misconduct.

Daniels believed that she was suspended because of her instruction to Cliffe Dekker Hofmeyr Attorneys to issue a letter of demand to McKinsey and Gupta-linked Trillian for the money paid.

The other charge related to the team-building event, which took place in April 2017.

In September 2017, Daniels received a letter from Crawford Global Technical Services stating that they were investigating her conduct in the alleged payment irregularities of the Kievits Kroon breakaway and irregular expenditure pertaining to legal advice she obtained from Cliffe Dekker Hofmeyer Attorneys. Daniels was on leave when she received this letter. She returned to the office on October 2 2017 and informed Crawford that she was seeking legal advice. She received the notice of intention to suspend her on the same day.

Kekana ruled that the “vague notice of suspension” – by acting chief executive Sean Maritz, who was later suspended and has since resigned – was effected more than seven months after the employer became aware of the alleged misconduct.

It has been almost a year and no date has been set for the disciplinary hearing.

“There was no explanation for the delay. The unexplained excessive delay on its own made this suspension procedurally unfair,” Kekana said in his report.

In November last year, Daniels confirmed the Gupta family’s influence at Eskom.

In explosive testimony before the Public Enterprises Committee’s inquiry into state capture at Parliament, Daniels spoke on how she had met Ajay Gupta and his business associate Salim Essa on separate occasions on matters related to executives at the power utility.

Daniels relayed details of how she had first met Essa in March 2015, alongside suspended Eskom executive Matshela Koko.

At this meeting Essa asked what it would take to have employees suspended.

Later that year Eskom suspended four of its executives including former chief executive Tshediso Matona.

Koko was one of the four who “survived” the suspension.

Daniels had met with Essa on July 29 2017. At this meeting she was introduced to Ajay Gupta and Duduzane Zuma.

Ajay had mentioned he would speak to someone at the deputy judge president’s office to have a labour court application lodged by former Eskom chief executive Brian Molefe (who later resigned and became a member of Parliament) postponed to a more “favourable” date.

Daniels also spoke on the legality of the payments made for a contract with Gupta-owned Tegeta. She added that Molefe had undue influence in the deal.

During the briefing Daniels also spoke about threats to her life for speaking up.

Apart from telephone calls, she had been intimidated on the road. She also said that the Eskom board was trying to discredit her Trillian report.

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September 23 2018