Nine years on, Telkom ex-employees still fighting outsourcing firms

Mail & Guardian

08-05-2025

(Ashraf Hendricks/Ground Up)
Nineteen former Telkom employees who won a protracted legal battle after being unfairly dismissed during the implementation of a labour outsourcing agreement are still fighting for their jobs and have filed papers in the Durban labour court seeking a declaratory order.
Advocates and attorneys for WNS and Aegis T/A Startek, which have opposed the matter, and for
WNS is the first respondent in the matter while Aegis T/A Startek is the second respondent.
The latest chapter in the marathon labour court battle comes after the employees reported for
Govender said WNS, the company to which the workers were
WNS told the employees that all the staff in the division had been transferred to Aegis T/A Startek in 2021 in a Labour Relations Act Section 197 transfer and instead offered them alternative employment within the company, which the workers refused.
WNS has since partially paid their backpay although there remains a dispute over the sum payable as the company had paid them according to its 2015 rate.
Instead of taking up new posts, the group filed court papers seeking a declaratory order regarding their reinstatement.
In court papers on Friday, the employees asked for a declaratory order stating that 'the second respondent (Aegis T/A Startek) is the employer of the applicants and shall forthwith reinstate the … applicants in their positions that they held with the first respondent (WNS) at the second respondents business premises in Durban with effect from the date of their dismissals in June 2016'.
They also asked that Aegis/TA Startek pay their backpay dated from 1 January 2023 in accordance with the court order.
The employees argued that their right to be reinstated and remunerated by Aegis T/A Startek arose from the section 197 agreement between the company and WNS.
They said WNS had contended that the labour appeal court ruling ordering their reinstatement applied to Aegis T/A Startek and not to itself because the business operations were transferred as a 'going concern' under the labour law transfer.
However, Aegis T/A Startek has denied that the employees were entitled to be reinstated in its business, alleging that the labour appeal court had 'exceeded its powers' by deciding an 'underlying review application' when the matter was not before it.
Aegis T/A Startek contended that it was not given the opportunity to file an answering affidavit regarding the underlying review in which it would have explained the consequences of the transfer.
This was because the labour appeal court had made the reinstatement ruling in light of the protracted battle when it had been asked to decide whether the employee's appeal against a labour court ruling could be reinstated after they had missed a deadline for filing court papers.
However, instead of just ruling that the appeal be reinstated, the court had ruled on the underlying application, in favour of the employees.
Arguing for the workers on Friday, advocate Zuanite Ploos van Amstel said Aegis T/A Startek was aware of the existence of the employee's litigation against WNS in terms of the section 197 transfer agreement as they were included as a potential risk.
'In the agreement it states: 'exposure: possible reinstatement of the 22 employees'. The second respondent was aware of this dispute and it was aware of a possible reinstatement order,' Ploos van Amstel said.
She argued that the court was well within its powers to rule on the underlying application as the law made provision for it to do so where the circumstances required it to.
'The [Commission for Conciliation, Mediation and Arbitration] award as substituted by the
However, WNS and Aegis/Startek had not filed an appeal.
She argued that Aegis T/A WNS was aware of the litigation as it had been alerted in writing in the section 197 transfer.
Advocate Sarah Saunders arguing for Aegus T/A WNS said it was 'a big day' for the company as it was 'the first time in nine years they have had a chance to respond'.
Saunders argued that the labour appeal court did not have the power to decide on the underlying application and therefore the order was invalid and ineffective.
'The only thing the labour appeal court is entitled to do is to confirm or set aside a judgment and it (the matter) has to be the subject of the appeal. The labour appeal court went further and decided the review. The labour appeal court stepped out of its zone of power in considering something that was not the subject of the appeal,' Saunders said.
'The review was not the subject of the appeal … the second respondent has been denied the opportunity to be heard, the prejudice to the second respondent is devastating. There is no question this matter has not come to the end of the road and the applicants have been persistent.
'The second respondent that has now entered the fray will be persistent too. It will come to the constitutional court, regardless of what this court finds,' she said.
She said it would be a 'miscarriage of justice' if the order was found to be enforceable.
'The court said this matter has taken so long and what a travesty it is and that is correct but we also have an entitlement to be heard, it [the company] may have to narrow its points of contribution to very fine key points but closing the door before we even stood up can never be correct,' she argued.
She said the new employer had a right to have joined the review application, but this did not happen.
However, Ploos van Amstel contended that the fact the new employer was precluded from being heard in court did not render the court order ineffective as it was aware of the litigation, while section 22 of the Supreme Court Act allowed the court to go beyond the matter of appeal and determine an ancillary issue.
Judge Ian Bulose reserved judgment to an undisclosed date.
The matter came before the court after the employees had appealed a labour court ruling in which labour court 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.
Labour appeal court judge Bashir Waglay at the time summed up the matter as being 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 his ruling, Waglay said he condoned the late filing of court documents and reinstated the employees' review application. He said the employees could not be held back by the 'unsatisfactory conduct' of their attorneys that led to delays.
He reviewed and set aside as 'not reasonable', based on the evidence presented at arbitration, the CCMA'S award agreeing with WNS that the employees should be dismissed.
Waglay set aside and substituted the labour court ruling that 'the dismissals of the applicants were unfair, and they are reinstated in their former positions at the remuneration they would have earned, but for their dismissals'.