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)
A group of 19 former Telkom employees who won their battle in the labour appeals court in Durban, after being unfairly dismissed during the implementation of a labour outsourcing agreement, are still fighting to get their jobs back even after the court ruled they should be reinstated.
Communication Workers Union shop steward Krishaveni Govender said the employees had reported for duty at WNS on 11 March as required by the court order. They were originally 21, but two have died during the protracted eight year battle.
Govender said WNS, the company to which the workers were outsourced by Telkom in 2015, had refused to reinstate them and pay their one year back pay, in terms of the court order.
WNS told them that all the staff in the division had been transferred to Aegis T/A Startek in 2021 and instead offered them alternative employment within the company.
“WNS accepted our tender of service and then informed us that, in good faith, they have a proposal they could offer us, which was re-employment, as opposed to what the court ordered which was reinstatement,” Govender said.
“I raised the question of whether this meant we had to lose all our terms and conditions of employment as per section 197 of the LRA [Labour Relations Act] … Their operations head, Mr Barnard Steyn, confirmed that would happen.
“He then mentioned that they will only be able to pay the backpay ordered by the court if we signed a full and final settlement clause, which entails not being able to make any future claims against WNS or Aegis. In my view, that goes against our right to have had our back pay paid, which is legally due to us.”
Govender said it was “shocking” that WNS had not implemented the requirement of the court order and that the company had also failed to mention to the court that Aegis was the new employer after the latest section 197 transfer under the LRA took place.
Appeals court judge Bashir Waglay handed down a 29-page ruling earlier this month after attorneys acting for the applicants, and the respondent WNS, had argued their cases in September 2023.
The employees had appealed an earlier labour court ruling in which judge Indran Moodley did not grant 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 1 000 Telkom employees whose services had been outsourced to the company.
According to court papers, the workers had failed to arrive for duty at their new WNS work premises, after they raised concerns about health and safety in the building, and instead reported for duty at their former workplace.
Three days later, WNS dismissed them and they filed a case with the CCMA, which they initially won. WNS took the matter to the labour court which overturned the CCMA decision and found that the employees were guilty of misconduct.
The court referred the matter back to the mediation commission for a sanction to be imposed. CCMA arbitrator Nqobile Dube agreed with WNS that the fitting sanction was to dismiss the employees.
Govender said WNS “kept reiterating that they are not the employer and we must go to Aegis”.
“When questioned if Aegis knew about this matter and the judgement they said they were fully aware from the point of which Telkom awarded the contract to them. Aegis, on the other hand, contends this was never shared with them,” she said.
“We are now caught in a ping-pong match scenario and are being bounced between these corporate companies whilst Telkom, who is the primary employer of the section 197 going-concern transition, can easily intervene and resolve this matter.”
Govender said the worker’s lawyer Richard Donachie had written to WNS, Aegis and Telkom to try to resolve the matter, stating that the rights and obligations between WNS and the employees had become the rights and obligations between them and Aegis “as envisaged under the provisions of section 197(2) of the LRA”.
“The transfer did not interrupt the continuity of employment and the employment contract continues with Aegis as it did with WNS,” he wrote.
He said Aegis had also become bound by “any arbitration award made in terms of the LRA, as against WNS”.
Govender said the companies involved were “oblivious to the pain and suffering we as employees had to endure over the past eight years”.
One of the workers, Yugen Moodley, said the group was “very perturbed after discussions with WNS management” on 11 March.
“We abided by the instructions of the court order and tended our duty … But, to our amazement, WNS management offered us re-employment instead of reinstatement. WNS then instructed us to report to Aegis without any documentation,” he said, adding that Aegis had told them not to report for duty because it was not aware of the reinstatement.
“Under section 197, Telkom is our primary employer and we have reached out to Telkom to intervene because Aegis is their client. It’s a travesty of justice that these companies are still allowed to ignore the ruling of the labour appeal court, one of the highest courts in our country,” he said.
“All 21 of us lost everything, including our dignity, and we lost two of our close colleagues that couldn’t handle the stress we had to endure over this period. But we were resilient and we had hope in our judiciary to expose the truth.”
Asked to respond to questions regarding the matter, WNS’s attorney Mendel Sass said the company had instructed him to inform the Mail & Guardian that “it does not provide media comment in relation to on-going legal matters”.
Aegis’s attorney Leigh Allardyce said she had been instructed that “our client is not prepared to respond to the below questions at this stage and reserves its rights to do so at a later stage”.
“Save for what is stated herein, our omission to respond to the questions below is not, and shall not, be construed as an admission thereof. Our instructions at this stage are that our client is considering its options,” she added.
Asked whether Telkom would intervene in the matter, executive for group communication and support Mooketsi Mocumi said: “Telkom is currently studying the judgment and will provide a detailed response to the legal representatives of the applicants.”