Nineteen former Telkom employees who won a protracted legal battle after being unfairly dismissed during the implementation of a labour outsourcing agreement are still fighting for their jobs (Waldo Swiegers/Bloomberg via Getty Images)
A group of 21 former Telkom employees have won their case in the labour appeals court in Durban after being unfairly dismissed during the implementation of a labour outsourcing agreement and fighting for eight years to get their jobs back.
Appeals court judge Bashir Waglay handed down his ruling — with which judges Dunstan Mlambo and Gcina Malindi concurred — on Monday.
This was after attorneys acting for the applicants, Communication Workers Union shop steward Krishaveni Govender and 20 former Telkom employees, and the respondent, WNS, the company to which they had been outsourced in 2015, had argued their cases in September.
The employees, represented by attorney Terence Seery, had appealed an earlier labour court ruling by Judge Indran Moodley, who did not grant them permission to file court papers late in an application to review a Commission for Conciliation, Mediation and Arbitration (CCMA) decision.
The CCMA had found the workers guilty of misconduct, which led to their dismissal from WNS. They were among 1 000 Telkom employees whose services had been outsourced to WNS in 2015. Two of the 21 employees embroiled in the fight to get their jobs back have since died.
According to court papers, the employees failed to arrive at their new WNS work premises after they raised concerns about health and safety in the building, including that a snake had been found. Instead, they reported for duty at their former workplace in the Durban CBD.
Three days later, WNS dismissed them and they filed a case with the CCMA, which they initially won. But the company took the matter to the labour court, which overturned the CCMA decision and found the employees guilty of misconduct.
The court referred the matter back to the CCMA and it agreed with WNS that the fitting sanction was to dismiss the employees.
WNS, represented by attorney Chris Todd, had earlier argued in the appeal court that the six-month period for the review application had lapsed and the employees had not followed up with their attorney regarding what had caused the delays in filing court documents.
The former employees and their attorney, Seery, had argued they had not deliberately delayed the matter and that their attorney had miscalculated the deadline, while the delivery of the documents had been hampered by the Covid-19 lockdown in 2020, a candidate attorney who failed to do her duties and load-shedding.
The union, which had agreed to foot the bill for the litigation, had also faced difficulty in paying their attorneys, contributing to the delay.
Waglay at the time summed up the matter as being beleaguered by “error upon error upon error” over the past eight years but what needed to be examined was whether the review application had a good prospect of success, the possibility of prejudice and the interests of justice.
In his ruling this week, Waglay said he condoned the late filing of court documents and reinstated the employees’ review application. He said the employees could not be held back by the “unsatisfactory conduct” of their attorneys that led to delays.
He reviewed and set aside as “not reasonable”, based on the evidence presented at arbitration, the CCMA’s award agreeing with WNS that the employees should be dismissed.
Waglay set aside and substituted the labour court ruling that “the dismissals of the applicants were unfair, and they are reinstated in their former positions at the remuneration they would have earned, but for their dismissals”.
“The applicants are reinstated as and from their date of dismissal but will only be remunerated from 1 January 2023 and must report for duty at the premises from which the respondent presently operates by no later than 11 March 2024.”
He replaced the “woefully erroneous” CCMA sanction with that of a “final written warning valid for 12 months relating to their absence from work without permission”.
The former employees welcomed the ruling but said they were disappointed they had been awarded only one year of back pay.
“This eight-year-long, difficult journey has taken a toll on all the employees that were a part of this matter. It’s a victory for us — perseverance has paid off in terms of getting our jobs back,” Govender said.
“However, the disappointing part is the back pay that has been awarded without any justification.
“We have suffered financially over the past eight years and to be given only one year of back pay is not in the best interest of justice. What has been financially lost is next to impossible at this stage.
“The prejudice and injustice suffered has not been rightfully compensated. How do the employees that have lost their assets during this period recover from this?”
Employee Yugen Moodley said the group was “relieved” at the outcome “because, in our hearts, we knew we were never guilty of any wrongdoing”.
“It is evident this case was manipulated from the beginning to suit a certain narrative at our expense,” he said. “Although we are happy with the judgment whereby the court found that our dismissal was unfair, we definitely don’t deserve one year compensation for the pain, suffering, humiliation, emotional and financial distress we had endured.
“I lost my pension, assets, my health deteriorated to the extent that I was diagnosed with colon cancer and medical complications arose due to the stress of not being employable. We lost two colleagues because they couldn’t handle the stress,” he said.
Moodley said the employees’ “combined centuries of loyal and dedicated services” to Telkom had not been taken into account, while corrupt state employees kept their jobs.
“This judgment should have been harsh on the employer for not following the appropriate labour laws of our country. How can an employee get dismissed for not coming to work for three days but the labour law says [it] is a minimum of five days?
“Will there ever be justice for hard-working employees that follow the rule of law?”
The heading and excerpt to this story were amended on 12 March 2024 to better reflect the gist of the story.