While organised labour has reacted strongly to Telkom's reaffirmation that it intends to use employment equity as one of the criteria in its restructuring process, arguments for and against the legality of the move look set to come down to glass half-full or half-empty interpretation of the company's overhaul.
Solidarity Trade Union and the South African Communications Union (Sacu) have come out swinging in response to comments made by Telkom CEO Sipho Maseko yesterday that the operator would use employment equity as a criterion for retrenchment decisions, in case of a stalemate. "Where candidates are tied, the Employment Equity Act becomes the tie-breaker, which is exactly what companies do when they recruit staff," Maseko was quoted as saying in media reports this morning.
The unions, however, are adamant that using employment equity as a criterion for retrenchments is illegal in terms of the Labour Relations Act, as it cannot be applied to no-fault dismissals, as set out in Section 189 of the Act. But a Telkom insider, who cannot be named, says this is just one way of interpreting the situation, as the company will argue the net outcome of its restructuring process will be the rehiring of staff.
Telkom and the unions are currently in the midst of a facilitation process, headed by attorney Charles Nupen. His appointment was made in terms of a Labour Court order to facilitate consultations regarding proposed retrenchments at Telkom.
Water-tight case
Solidarity says it launched an urgent application for an interdict in the Labour Court "to stay the flawed consultation process that Telkom has followed to date". The court order also stipulates that Telkom is prohibited from making any appointments or carrying out any retrenchments until the facilitation process is concluded.
Spokesperson Marius Croucamp says Solidarity is currently proceeding according to the facilitation process, and that Telkom has yet to officially put forth employment equity as a criterion for retrenchment decisions in the facilitation process. However, should the company do so, it will have a serious fight on its hands.
"In the case of appointments, employment equity certainly has a place, but not in the case of dismissals. We are not fighting this as matter of principle, but rather as a legal point. And we have a water-tight case.
"We have given Telkom a fair chance to get it right. If they get it wrong now, they will face the consequences."
Sacu president Michael Hare also confirmed the union will fight Telkom's use of race as a dismissal criterion, and accused Maseko of making the comments in bad faith, while the facilitation process is under way. "Once again, Telkom is creating the impression that it is above the law of the land."
Firing or hiring?
However, the Telkom insider says employment equity will definitely be used as a criterion for retrenchment, or more specifically, as criteria for rehiring, which is a provision under Section 189 of the Labour Act in the case of organisational restructuring.
"Some positions will be done away with and others will be created. For instance, if a division that employed 20 people is restructured and now only has 15 positions, staff members can reapply through an expression of interest for their jobs. In this case, we will look at the applications with employment equity as a criterion, as is normal in a hiring process under the auspices of Section 189."
Furthermore, the insider argues the unions are fixating on the issue of race, while employment equity also encompasses aspects such as gender and disability. "Basically, is this a process of retrenchment or rehiring? The retrenchment will be collateral damage... but it will have to be scrutinised in terms of the law."
The Telkom restructuring process comes amid the operator's bid to slash expenses, and speculation is that it plans to cut almost half its workforce.
Share