Don’t throw the dice, warns labour judge
Former Telkom employees are fighting for their jobs, which were outsourced eight years ago
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 after hearing brief arguments by WNS and the former workers’ attorneys.
The employees, represented by Terence Seery and Nirvashnee Napaul, 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. They were among 1000 Telkom employees whose services had been outsourced to WNS in 2015.
WNS, represented by 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. 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,” 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. “Twentyone people and their families are still out of work and that is why they are hanging around here ... Mr Todd, your employer has over 6500 employees and maybe you should consider taking them back.”
Addressing Seery, Waglay 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 … 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.”
The employees initially took the matter to the CCMA where an arbitration award was granted in 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.