Yesterday, two unions representing some of Telkom’s workers said that they would take the South African landline provider to court over possible job losses that would result in half of Telkom’s staff being retrenched. Michael Bagraim from Bagraim Attorneys sums it all up quite well, “We’re getting into the Alice in Wonderland situation again where ‘we don’t like Apartheid, but let’s practice it anyway’.” Michael’s scathing summation of what is going on can only be described as concerning, especially given his keen insights into labour law and employment equity. Bagraim also discusses the facts surrounding the end of the platinum strike, and what it really means if its resolution was thanks to a Bishop and a lawyer overcoming ANC politicking. This piece is controversial, and if there is one thing that you should digest today, this is it. – LF
ALEC HOGG: Michael, just to start off with, what the unions are saying sounds quite aggressive if Telkom are even close to the mark – getting rid of 9000 of their 19,000 workers in the next six months. That seems more than an aggressive retrenchment program. Is there any truth in that kind of statement, or is it scaremongering?
MICHAEL BAGRAIM: Firstly, 9000 is a massive restructure. It’s not even a retrenchment exercise. It looks like a complete restructure and in fact, Telkom have said that’s the number they’re looking at. It doesn’t mean that they’ll retrench all those people, but that certainly is the sort of numbers they’re looking at. This is not some sort of ‘wilting lily’ exercise where you retrench four people in a department. This is a massive restructure and obviously, Telkom are quite bullish about this. I think the unions are just as upset as to how Telkom is going about this. Firstly, they seem to have usurped the proper consultation process in terms of Section 189 of the Labour Relations Act. They have advisers and I think they need to go back to the drawing board, and listen to their advisers as to how to consult properly – that’s the one issue. Secondly, Telkom has said that they’re going to use some of the criteria to retrench people when they choose who goes.
Not only ‘last in, first out’ and obviously, the retention of skills, but they’re going to use the Employment Equity Plans, which means that they’re going to look at possibly targeting white males to push them out, to make way to gain the employment equity numbers that they are trying to reach. This goes against both the law and the spirit of the law. The reality is that there’s nothing moral about what they’re doing. It’s completely immoral. What they’re saying is if you have an old white male, let’s get rid of him so we can get a young black worker in. That’s not acceptable and that doesn’t, in any way, adhere to the Legislation and certainly, it doesn’t adhere to what we’ve been talking about for years where you’re not going to have some sort of wholesale ‘get rid of the white worker’. That sounds ridiculous. It sounds like we’re back to apartheid.
ALEC HOGG: Michael, that has been the reality in most public sector organisations. It is unconstitutional. It is against the law. Surely, we’re supposed to be living in a non-racial, non-sexist democracy. It appears as though that’s the route they’re going to take. Are you then expecting that the trade unions could win this in a court of law?
MICHAEL BAGRAIM: Absolutely, if it comes down to that and they take it to the Constitutional Court. It’s possible that a labour court would kill it immediately. I presume Telkom would try to get into the Constitutional Court. I don’t believe any court would sustain an argument of that nature. Yes, I understand if a white employee resigns, retires, leaves, or dies etcetera, then yes, you implement your Employment Equity and you then put in people who would fill up your quotas. However, to actually physically go and say ‘let’s target certain types of people. Let’s get them out’. I don’t think any other entity has done that. You’ll remember the Department of Correctional Services said that we’re not going to promote people who are white. That was one thing, but this is taking it one step further.
This is becoming one step closer to the ridiculousness of the whole piece of legislation, and that is saying ‘let’s now target those people and push them out physically, never mind promotion or even putting them into posts’. This is taking it that step… I don’t think any other parastatal or government department has gone this far, and this is showing how ridiculous it can get. We’re getting into the Alice in Wonderland situation again where ‘we don’t like Apartheid, but let’s practice it’.
ALEC HOGG: Michael, just on a different note… The platinum strike we now know is over. It lasted five months. There’ve been some very interesting reports about how it was brought to an end. On the one hand, the international news service Reuters, was giving credit to Dali Mpofu, the Bishop, and Mathunjwa meeting with Ben Magara from Lonmin. We had Dali Mpofu in the studio yesterday. He confirmed pretty much what was in that report, but the scary part of it is that the Minister of Mines was in fact, told by the ANC (according to this report, anyway) to back off, to leave it, to almost let the strike continue. If that’s accurate, then I guess the implications are quite stark in many respects.
MICHAEL BAGRAIM: Yes, I don’t know if it’s accurate, but if it is… Let’s just for a moment think it is accurate – and there is a lot pointing to the accuracy of that, because the Minister did suddenly … He had all the good intentions in the world to try to sort this out and then all of a sudden, just pulled out. It left us in the Labour Law community, quite shocked. Let’s say that Luthuli House did in fact tell him ‘pull out’ – that’s the ANC almost practicing a scorched earth policy. In other words, let’s destroy this industry because unfortunately, there are too many people going over to AMCU and the EFF, or NUMSA for that matter (as we have the strike going now). It shows you how harsh the politics are and how the ANC is actually trying to cope with it. It’s a bleeding ANC and they don’t want people running across. They thought that if they kill everyone – in other words, they let the strike go on forever – everyone starves to death.
It sounds mad. It’s absolutely mad. Despite the fact that I am not an ANC supporter, I hope that that’s not true because the country’s at stake. It’s South Africa. We’re worrying about South Africa. We’re worrying about our economy. To let politics destroy the country is a mad though – absolutely mad though.
ALEC HOGG: Unintended consequences perhaps, of something that they thought would hurt the party. I take that and then translate that into what’s going on at Telkom, which is of course, at the end of the day, very heavily influenced (if not absolutely controlled) by this ANC government. Would that not mean that perhaps this whole retrenchment package, the change, the breaking of laws as you’ve been saying, will be pushed through anyway?
MICHAEL BAGRAIM: Well, it looks like it. If politics is going to rule supreme, they will push it through. Of course (and thank God for this), we still have the independence of our Judiciary. We need to protect it. As citizens, we need to ensure that our Judiciary stands protected. I know that Justice Mogoeng has said that it will and he’s not going to be influenced by the politics. One thing I know for certain, is that our Labour Court is completely independent and whether the politics support the Labour Court or not, they’re going to stand on their own two feet and make sure that when moves like this at Telkom happen, that the court will intervene very quickly and stop it. They did this with the Department of Correctional Services. They’ve done that with the police force, and they will do it with Telkom, regardless of the politics. How long that stays, I don’t know but we, as citizens need to ensure that our institutions are kept solid, like our Public Protector. We need to protect those people and make sure that they stay solid and independent.
ALEC HOGG: That was Michael Bagraim from Bagraim Attorneys.
