14 February 2020
The Johannesburg Labour Court has dismissed the case of about 200 former Ekurhuleni municipal workers who claimed they should have been made permanent employees and should be reinstated after being dismissed.
The court did however increase their compensation from R6,000 to R24,000 per worker.
The order was handed down by Acting Judge Chiman Patel on Thursday morning.
The workers were first employed by Ekurhuleni municipality under a job creation programme called Lungile Mtshali Development Plan Project in 2014. They were employed to clean the streets, drains, old age homes, municipal buildings, cemeteries and parks.
The programme ended in June 2015 and the workers’ contracts were terminated. Two months before the termination, the workers referred the issue to the South African Local Government Bargaining Council (SALGBC), with the help of Lawyers for Human Rights (LHR), arguing that they should be made permanent employees of the municipality.
In December 2015, while the workers were waiting for their case to be heard at the bargaining council, they were hired by a company called Hlaniki Investment Holdings (Hlaniki) to perform the same jobs for the municipality.
In September 2016, the workers referred another case to the bargaining council arguing that Hlaniki was acting as a Temporary Employment Service (TES) or labour broker for the municipality and they should have been made permanent employees after three months.
Both the workers’ cases were heard at the bargaining council by commissioner Timothy Boyce in May 2018. Boyce found that the municipality should have made the workers permanent and made an arbitration award of R6,000 per worker. But he did not find that the municipality hired Hlaniki as a labour broker. This meant that the workers were not entitled to having their jobs reinstated.
LHR took Boyce’s ruling on review to the Labour Court, arguing that he had not looked beyond Hlaniki’s contract and assessed the actual implementation of the programme.
“The arbitrator misidentified the true nature of the enquiry, and when determining whether a TES relationship existed between Hlaniki, the municipality and the [workers], confined himself to the written terms of the contract, and further confined himself to the description of the parties as appeared on the contract between Hlaniki, the [workers] and GEP, ” read LHR’s court papers.
LHR said that Hlaniki was hired by the municipality to recruit, provide and manage the workers.
But Judge Patel disagreed in his judgment, stating that the core business of Hlaniki, according to the service level agreement between Hlaniki and the municipality, was not to provide labour but to act as a project manager for the Lungile Mtshali Development Plan Project.
He said this meant that Hlaniki could not be considered as a TES and LHR did not provide sufficient legal evidence why he should ignore the service level agreement.
Judge Patel also sided with Boyce, stating that his decision to compensate the workers instead of reinstating them was “one that a reasonable commissioner … would have arrived at”.
“I agree with [Boyce] when he concluded that reinstatement is not reasonably practical because there was never intention by [the municipality] to employ the [workers] permanently. It was not reasonable to permanently employ the [workers] as the work was for a limited duration,” read the judgment.
But he said Boyce’s award on compensation was not one which a reasonable commissioner would have arrived at.
Based on the length of service, how the workers were dismissed and the reasons for their dismissal, Judge Patel said the just and equitable compensation would be 12 months’ remuneration. This amounts to R24,000 per worker as opposed to R6,000.
In response to the judgment, William Gundwane, one of the workers, said: “They could have rather kept the R24,000 and given us our jobs back because we want to think permanently and not temporary … We want our jobs back.”
He said he is currently unemployed and his family depends on him for support.
“I have been promising my family for five years now that we will live a normal life after I get my job back but now I have to go back and tell them about R24,000. They are going to tell me it’s peanuts,” Gundwane told GroundUp.
He said the workers did not know when they were going to get compensated by the municipality.
“I’m going to be a madala [old man] by the time we get that money and I have so much debt to pay so all that money will go there … I don’t feel like a human being in this country. The government wants to create employment but they are stopping us from working. What do they want us to do?” asked Gundwane.
He said the workers would be divided on the judgment, some of them wanting to accept the compensation while others wanting to appeal.
After fighting for his job for five years, Gundwane said he did not want to continue fighting in court because the process would be too long.
“But we will show our anger in the [municipal] elections next year. They will ask us to vote for them and we will not,” he said.