Huawei firing drivers via SMS is legal, even if impolite
A South African labour lawyer says this week's firing via text message of drivers formerly employed at Huawei, which led to protest action on a busy Johannesburg highway, is likely within the law.
The strike action, by drivers who were employed at the technology company through recruitment agency Adcorp Blu, reached a pinnacle when 17 were arrested on the stretch of road metres away from Huawei's head office following a month-long dispute between the parties.
Brian Patterson, head of department and director in the employment department of law firm ENSafrica, says while the choice to terminate the drivers' employment through text messages may be seen as inappropriate by some, it is permitted by the country's laws.
"Section 37 (4) (a) of the Basic Conditions of Employment Act on the notice of termination of a contract of employment says such notice must be given in writing except when it is given to an illiterate employee. So when an employer gives notice to literate employees, then it needs to be in writing.
"The next question is whether an SMS meets those requirements and the answer is yes. Whether it is appropriate, the answer would be definitely not but that is not a legal question as the requirements of the Act have been met.
"From an employer's perspective, it will only be valid if the employee receives the SMS, and if they don't receive the SMS, it will be difficult to prove that they did. Some employers have done it in mass dismissal but it creates legal issues in relation to receipt."
Patterson says the decision to communicate dismissals through SMS from an employment relations or HR perspective is 'very poor form' under normal circumstances and should be avoided for the reputational damage that may result.
"Electronic communication has become an important part of South African business and in terms of the Electronic Communications Act, subject to some procedural compliance, electronic documentation is admissible in court and it is valid.
"One of the key issues from a lawyer's perspective regarding documents is proof of receipt and that they have not been interfered with. In our law, there are ways to ensure those issues are addressed but there are pitfalls and one of those is receipt. Something as significant and stressful as a unilateral termination by an employer is best done one-to-one."
Mandy Jones, group marketing manager at Adcorp Blu, confirmed the drivers were informed of their firing by way of SMS.
"Yes, the SMS was a culmination of a protracted and very detailed labour relations and engagement process with various stakeholders. This spans the period March 2017, when drivers embarked on an unprotected strike for the first time, then continued to engage in unprotected collective action over the following weeks, in breach of labour court interdicts and ultimatums and ultimately, without any further reasonable options, dismissal which was communicated via SMS to 47 of the approximately 200 drivers."
Jones says Adcorp Blu provides a temporary employment service (TES) to Huawei, through which the drivers were sourced, screened and placed with the company. Although Adcorp Blu administered the payroll, drivers were operationally managed by Huawei to deliver on Huawei business needs, according to Jones.
"Huawei have taken a decision to change their current TES service into a full-fledged outsourced logistics solution, and as such, terminated the requirement for Adcorp Blu to provide the drivers. Adcorp Blu immediately started to follow operational requirements processes, and also investigated and offered certain mitigating options to the affected drivers."
Some of the mitigating scenarios considered are said to have included enhanced severance pay, work readiness interventions and consideration of employment with the "new" outsourced provider.
Huawei Technologies SA emphasises what it describes as a commitment to compliance with labour laws in response to "allegations made by outsourced drivers who have been engaging in unprotected industrial action and an incident on Grayston Drive in Sandton".
It says the drivers were notified of their dismissal "by formal notification to their appointed legal representative and registered mail, followed by multimedia channels".
Christina Naidoo, COO of Huawei Technologies Africa, says the decision to move its outsourced transport system from various separate service providers to one fleet management company was not easy.
"Huawei had to make a difficult business decision. Transport is not a core business function, that is why we used an outsourced model, including labour. But it was too cumbersome with many service providers; this resulted in administrative and financial inefficiencies."
Huawei also referred to an interim order it says it secured through the Labour Court on 31 March prohibiting outsourced workers from further protests on public roads, in addition to barring them from intimidating the company's staff or illegally occupying Huawei's offices and operations.
Johannesburg Metro Police spokesperson Wayne Minnaar confirmed the drivers arrested during the protest were held at the Sandton Police Station. Lawyers representing the affected drivers could not be reached for comment.