Unhappy drivers picketed outside the Unitrans depot this week. Themba Nkosi couldn’t help his sick son and Johannes Sindani
A Constitutional Court ruling against multinational Unitrans Fuel and Chemical was supposed to save 94 families on the brink of starvation. But when you’re poor the wheels of justice turn very slowly.
In September, the highest court in the land ruled that Unitrans unlawfully fired 94 drivers six years ago and should reinstate them. The company was also ordered to remunerate the drivers for back pay.
The drivers welcomed the ruling as a long-awaited victory. But the feeling of elation soon passed as they realised that this was only the beginning of protracted negotiations. The drivers say the company is still trying to figure out how “to implement a very simple judgment” and is using delaying tactics to benefit itself.
“The only reason they [Unitrans] are delaying this is to ensure we are so desperate, hungry and poor that we will accept anything they give us, even if it’s not fair,” said Wellington Ngedle, one of the drivers.
Unitrans has offered the drivers a “measly R150 000” each for the six years of work that they were without. In a letter from the company’s law firm, Cliff Dekker Hofmeyr, dated October 7, it offered each driver R150 000, pleading financial constraints.
“I confirm that we conveyed to you the sensitivity of the company’s financial position as well as that it is a shell company without any employee,” reads the letter.
Lawyers representing the drivers told the Mail & Guardian that they were shocked by the company’s offer because it was nowhere close to the sum of money the drivers are owed.
This sum could amount to more than R500 000 for each driver.
The six-year battle against Unitrans ensued when the company fired the drivers after they went on strike, demanding equal wages across the board for all drivers. The matter was heard in several courts, ultimately ending up at the Constitutional Court.
Their battle to prove that they had the right to embark on a strike has devastated many of the 94 families. Some have been left destitute and others have been split apart; children have been deprived of an education and one family lost their son because they were unable to afford medical treatment to save his life.
Justice Mlungisi Zondo said the evidence presented before the court showed that the workers were not dismissed for misconduct but for operational reasons to protect Unitrans’s business.
He added that Unitrans had given the drivers a “death penalty” for exercising their right to strike.
“Dismissal as a sanction for misconduct is a sanction of last resort. It has sometimes been referred to as the death penalty. This is said in light of the harsh consequences it may have on an employee who is dismissed,” he said in his judgment.
It’s exactly what the dismissal constituted for many of the drivers.
“I was dismissed just before my son completed his studies to become a teacher in Nkandla. He started as an assistant in 2013, earning little money, but he had to take care of his younger brother, his mother, me at times,” said one of the drivers, Themba Nkosi.
His son fell ill and there was nothing Nkosi could do to help him.
“My child had to carry a burden no one should ever have to. He had no hope because he knew there was nothing I could help him with. There was no way I could save my son. Unitrans took everything from us. If I wasn’t a man I would weep,” said Nkosi, who is still not able to forgive himself for his son’s death.
A furious Ngedle said the company’s unlawful dismissal had resulted in his daughter being denied an education. “I wanted the best for my children. I had sacrificed so that they could go to the best schools and not be like their father, working for someone else,” he said.
“We are still poor and hungry. These shoes I’m wearing are the first pair I have bought for myself in years, having repaired the last pair I had until there was nothing left to repair. But here we are still waiting after the great judgment.”
Ngedle’s anger is justified. His 19-year-old daughter Zizipho Sishuba’s dream of becoming an accountant has been put on hold while Unitrans drags its feet. Sishuba, who matriculated two years ago, works as a part-time child minder at a restaurant, with no prospects of a better future.
Ngedle’s colleague, Johannes Sindani, has been depressed and has even contemplated suicide.
“It is as if one day my wife and children could go to bed on a full stomach and the next there was nothing to eat. It is hard when you have to go to bed on an empty stomach and my wife could not take it anymore. She left with the children.”
Sindani said he will never forgive Unitrans for tearing his family apart. His children couldn’t complete their studies because he was “penniless and we had no home”.
“Children lose respect for you when you can no longer provide for them. Can you imagine that every time your children ask for anything, you can’t give it to them? Can you imagine being a provider all your life and then being stripped of it because you were standing up for your rights?
“That’s what Unitrans did to us. Even now that it’s told it was wrong they won’t fix it,” Sindani said.
There is no timeframe for the multinational to enact the judgment.
Unitrans director Benjamin Jamie said the company is in talks with the drivers’ lawyers but, even at this weeks’ meeting on Tuesday, no progress was made.
“Unitrans respects the court’s decision and is therefore committed to ongoing discussions to resolve this matter in the best interest of all parties concerned,” Jamie said.
Why Unitrans brought 94 families to their knees
Unitrans Fuel and Chemical fired workers on a legal strike because they could not afford to lose business. But the drivers’ problems had come to the fore long before this, when Shell terminated its contract in 2009.
Unitrans had contracts with numerous clients to transport dangerous goods, such as petroleum products, oxygen and liquefied petroleum gas. The company remunerated its heavy-duty truck drivers in accordance with how profitable the contracts were.
When Unitrans’s lucrative contract with Shell was terminated the drivers were transferred to other contracts. But these drivers had to sign new contracts of employment that, in effect, reduced their wages.
The majority of the drivers signed the new contracts but seven refused to do so. Unitrans reduced the seven drivers’ wages without their consent.
This and other complaints led to the strike. The union demanded that Unitrans restore the seven to their former wage rates and pay all drivers equally irrespective of the contracts. Unitrans rejected these demands.
The union filed for a strike notice and more than 200 drivers went on strike in October 2010.
Unitrans viewed the strike as unprotected and, after numerous runs to the Labour Court and the Labour Appeal Court by the company and the union, the company issued a final ultimatum in November 2010.
It said that as a gesture of its goodwill and to end the strike it would restore the wages of the seven drivers and give them their back pay.
Unitrans refused to do anything about the wage discrepancy and ordered the drivers back to work the next day or be fired.
The drivers did not return to work and they were fired. But a few days later Unitrans rehired the workers without any disciplinary action and on a reduced rate.
Ninety-four drivers refused re-employment on those terms, believing that what Unitrans had done was unlawful.
Six years later the Constitutional Court found that they were correct: they had been on a protected strike and Unitrans had fired them unlawfully. — Athandiwe Saba
View the multimedia presentation at mg.co.za/Unitrans