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. (Waldo Swiegers/Bloomberg via Getty Images)
The Durban labour court on Tuesday heard an appeal by 21 former Telkom employees who were dismissed for alleged misconduct after they failed to report for work at the new premises of WNS Global Services SA to which their services had been outsourced eight years ago.
Judges Bashir Waglay, Dunstan Mlambo and Gcina Malindi reserved judgment, in a courtroom packed with former employees embroiled in the matter, after hearing brief arguments by WNS and the former workers’ attorneys.
The employees, represented by attorney Terence Seery, were appealing an earlier labour court ruling in which Judge Indran Moodley had not granted them condonation for the late filing of court papers in an application to review a Commission for Conciliation, Mediation and Arbitration (CCMA) decision.
The CCMA had found them guilty of misconduct, which led to their dismissal from WNS. They were among 1000 Telkom employees whose services had been outsourced to WNS in 2015.
WNS, represented by attorney Chris Todd, argued 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 at the time. The former employees argued that they had not deliberately delayed the matter.
“It wasn’t a wilful display by the attorney, these delays do not benefit either party in any way — there wasn’t a conscious effort to delay the matter,” Seery told the court.
He said the ruling had “destroyed the employment relationship” between WNS and the employees who collectively have long service with Telkom — about 500 years — and “clean disciplinary records”.
“There is no wider interest of justice but the protection of someone’s job in a bad economic environment. Here are 21 people who are negatively affected by an employer who was not negatively affected himself. There was no evidence before him [the judge] that there was any negative effect at the workplace,” Seery said.
Waglay said the matter had been 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 reserving judgment Waglay advised WNS and the former employees to carefully consider reaching an out-of-court settlement, saying both sides would need to take losses to resolve the matter.
“Twenty-one people and their families are still out of work and that is why they are hanging around here. I am not going to say who is going to win but I want you to consider one aspect; Mr Todd, your employer has over 6 500 employees and maybe you should consider taking them back,” Waglay said.
Addressing Seery, he said the employees should also not think they would get paid out eight years of back pay from WNS.
“If there is any settlement, great let me know but I am seriously calling out to all of you to think about this. Twenty-one families are at stake here, and there have been divorces because of this. Think about this especially … try to resolve this matter, please tell your clients, both of you must take a loss. Don’t throw the dice, you don’t know what we will decide, both of you need to take a loss,” Waglay said.
The group of employees initially took the matter to the CCMA where an arbitration award was granted on 13 April 2017, ordering that they be retrospectively reinstated to their jobs. WNS took the matter on review to the labour court and Acting Judge Faan Coetzee found the group guilty.
They filed an appeal which lapsed and Moodley declined to grant condonation for late filing of court records but granted the employees leave to appeal the matter.
The dispute arose when the staff did not report for duty at the premises of WNS when Telkom outsourced their jobs in 2015.