/ 12 May 2024

Former Telkom workers’ battle with outsourcing firms rages on

Balance Scale On Blue Background

Nineteen former Telkom employees are still fighting to get their jobs back after winning an eight-year dispute in the labour appeal court after their unfair dismissal during a labour outsourcing agreement.

The Communication Workers Union shop steward, Krishaveni Govender, said this week that the union is now preparing to file a declaratory order in the labour court to force WNS, the company that Telkom outsourced the workers to in 2015, and Aegis Outsourcing T/A Startek, the company to which they were subsequently outsourced by WNS, to reach an agreement to reinstate them.

This comes after 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 battle.

Govender said WNS had refused to reinstate the employees and instead “in good faith” offered them alternative employment at the company that would lead to them losing their rights under the Labour Relations Act’s (LRA’s) section 197 outsourcing agreement. But, she said, WNS had paid them one year’s back pay as ordered by the court, although it appeared that this was not done at the 2022-23 wage rate.

She said it was “shocking” that WNS had failed to mention to the court that Aegis was the new employer after the latest section 197 transfer under the Act took place.

Govender said the employees and union representatives had met WNS, Aegis Outsourcing and their attorneys on 16 April.

“WNS placed on the table the re-employment option which still is contrary to what the LAC [labour appeal court] judgment orders. The employment offer is contrary to the terms and condition of our S197,” Govender said.

“WNS and their legal advisers, Bowmans, had  failed to inform the court of the section 197 transfer between themselves and Aegis, as Telkom had moved the contract to Aegis in October 2021.

“Why wasn’t this critical information given to the judges and why wasn’t the transfer agreement tendered as evidence so that the LAC could have included Aegis in the court order as the new employer?”

“In my view WNS is still in contravention of the court order due to the fact they have an agreement in place with Aegis which outlines that all staff including Govender and 21 others must be transferred in the instance that reinstatement is ordered. The question now is why are WNS not enforcing the agreement?”

Govender said Aegis, in her view, had been “very disingenuous from the onset stating that they were oblivious about this matter”. 

The union recently obtained a copy of the section 197 agreement after filing a Promotion of Access to Information application with WNS.

“We have a copy of the agreement which clearly shows they have full knowledge on this matter and accepted the terms of that transfer agreement that was in place from 1 October 2021.”

According to the section 197 transfer agreement “anything done before the effective date by or in relation to WNS, including the dismissal of any transferring employee or the commission of any unfair labour practice or act of unfair discrimination, will be considered to have been done by or in relation to Startek”.

An addendum to the agreement also goes on to specify “Govender and 21 others” as  an “exposure” to Aegis because of the “possible reinstatement” of the employees.

But Aegis’s attorney, Leigh Allardyce, in a letter to the union’s attorney, Richard Donachie, on 19 March, wrote: “Your clients are not our employees and were never employees that were transferred by WNS to Aegis in 2021, nor is there any legal obligation on our client to accept their tender for duty. Accordingly, your client’s insistence on reporting for duty at our client’s premises tomorrow, 20 March 2024, is misguided and ill advised.”

Govender said Allardyce had told workers that the company would not accept their services because they had been dismissed.

“This doesn’t make any sense at all as the LAC ruling reinstated us from 20 June 2016,” she said.

“I believe this fact should change her view on this matter and she should advise her client, Aegis, correctly, especially now that this transfer agreement is in our possession.” 

Govender said Allardyce had told workers that Aegis would “fight” the matter to the constitutional court, which could involve another 10 years of litigation.

“She is misguided in her view that the offer WNS is making is a lucrative one … as she is fully aware of the transfer agreement in place between WNS  and Aegis. The workers are now left to deal with these corporations that want to further litigate and use the courts for their own benefit,” Govender said.  

One of the workers, Yugen Moodley, said Telkom was central to the predicament that its “long standing, loyal and dedicated” former employees now faced as Aegis and WNS are its clients.

“There is a binding legal agreement between WNS and Aegis, whereby it states that Aegis will be responsible for any dismissed staff from WNS, whereby, if a court rules for  reinstatement, then those employees must be accepted by Aegis,” he said.

“To be treated unfairly by Telkom’s India-based outsourced partners is extremely disappointing and painful. The struggle experienced by myself and my colleagues has left us financially, medically  and emotionally drained especially after litigation for eight years.” 

But Allardyce told the Mail & Guardian in an emailed response to questions on Thursday that the meeting held with workers was conducted on a “without prejudice” basis “with a view to resolution of the dispute, and thus the contents thereof are privileged information (that it is protected from disclosure to a third party).”

She said the union and its members were “not to be trusted” for “disclosing privileged information” to the media. “As such our client refrains from commenting … other than as aforesaid, at this stage and does not intend to litigate by way of media as appears to be the union’s modus.” 

WNS attorney Mendel Sass said the company does not provide media comment in relation to ongoing legal matters.

Telkom had not responded to a request for comment at the time of publication.

Appeals court judge Bashir Waglay handed down a 29-page ruling ordering the employees’ reinstatement in February after the case was argued 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.