Former Telkom workers’ battle with outsourcing firms rages on:
Nineteen former Telkom employees are still fighting to get their jobs back after winning an eight-year dispute in the labour appeal court after their unfair dismissal during a labour outsourcing agreement.
The Communication Workers Union shop steward, Krishaveni Govender, said this week that the union is now preparing to file a declaratory order in the labour court to force WNS, the company that Telkom outsourced the workers to in 2015, and Aegis Outsourcing T/A Startek, the company to which they were subsequently outsourced by WNS, to reach an agreement to reinstate them.
This comes after the employees had reported for duty at WNS on 11 March as required by the court order. They were originally 21, but two have died during the protracted battle.
Govender said WNS had refused to reinstate the employees and instead “in good faith” offered them alternative employment at the company that would lead to them losing their rights under the Labour Relations Act’s (LRA’s) section 197 outsourcing agreement. But, she said, WNS had paid them one year’s back pay as ordered by the court, although it appeared that this was not done at the 2022-23 wage rate.
She said it was “shocking” that WNS had failed to mention to the court that Aegis was the new employer after the latest section 197 transfer under the Act took place.
Govender said the employees and union representatives had met WNS, Aegis Outsourcing and their attorneys on 16 April.
“WNS placed on the table the re-employment option which still is contrary to what the LAC [labour appeal court] judgment orders. The employment offer is contrary to the terms and condition of our S197,” Govender said.
“WNS and their legal advisers, Bowmans, had failed to inform the court of the section 197 transfer between themselves and Aegis, as Telkom had moved the contract to Aegis in October 2021.
“Why wasn’t this critical information given to the judges and why wasn’t the transfer agreement tendered as evidence so that the LAC could have included Aegis in the court order as the new employer?”
“In my view WNS is still in contravention of the court order due to the fact they have an agreement in place with Aegis which outlines that all staff including Govender and 21 others must be transferred in the instance that reinstatement is ordered. The question now is why are WNS not enforcing the agreement?”
Govender said Aegis, in her view, had been “very disingenuous from the onset stating that they were oblivious about this matter”.
The union recently obtained a copy of the section 197 agreement after filing a Promotion of Access to Information application with WNS.
“We have a copy of the agreement which clearly shows they have full knowledge on this matter and accepted the terms of that transfer agreement that was in place from 1 October 2021.”
According to the section 197 transfer agreement “anything done before the effective date by or in relation to WNS, including the dismissal of any transferring employee or the commission of any unfair labour practice or act of unfair discrimination, will be considered to have been done by or in relation to Startek”.
An addendum to the agreement also goes on to specify “Govender and 21 others” as an “exposure” to Aegis because of the “possible reinstatement” of the employees.
But Aegis’s attorney, Leigh Allardyce, in a letter to the union’s attorney, Richard Donachie, on 19 March, wrote: “Your clients are not our employees and were never employees that were transferred by WNS to Aegis in 2021, nor is there any legal obligation on our client to accept their tender for duty. Accordingly, your client’s insistence on reporting for duty at our client’s premises tomorrow, 20 March 2024, is misguided and ill advised.”
Govender said Allardyce had told workers that the company would not accept their services because they had been dismissed.
“This doesn’t make any sense at all as the LAC ruling reinstated us from 20 June 2016,” she said.
“I believe this fact should change her view on this matter and she should advise her client, Aegis, correctly, especially now that this transfer agreement is in our possession.”
Govender said Allardyce had told workers that Aegis would “fight” the matter to the constitutional court, which could involve another 10 years of litigation.
“She is misguided in her view that the offer WNS is making is a lucrative one … as she is fully aware of the transfer agreement in place between WNS and Aegis. The workers are now left to deal with these corporations that want to further litigate and use the courts for their own benefit,” Govender said.
One of the workers, Yugen Moodley, said Telkom was central to the predicament that its “long standing, loyal and dedicated” former employees now faced as Aegis and WNS are its clients.
“There is a binding legal agreement between WNS and Aegis, whereby it states that Aegis will be responsible for any dismissed staff from WNS, whereby, if a court rules for reinstatement, then those employees must be accepted by Aegis,” he said.
“To be treated unfairly by Telkom’s India-based outsourced partners is extremely disappointing and painful. The struggle experienced by myself and my colleagues has left us financially, medically and emotionally drained especially after litigation for eight years.”
But Allardyce told the Mail & Guardian in an emailed response to questions on Thursday that the meeting held with workers was conducted on a “without prejudice” basis “with a view to resolution of the dispute, and thus the contents thereof are privileged information (that it is protected from disclosure to a third party).”
She said the union and its members were “not to be trusted” for “disclosing privileged information” to the media. “As such our client refrains from commenting … other than as aforesaid, at this stage and does not intend to litigate by way of media as appears to be the union’s modus.”
WNS attorney Mendel Sass said the company does not provide media comment in relation to ongoing legal matters.
Telkom had not responded to a request for comment at the time of publication.
Appeals court judge Bashir Waglay handed down a 29-page ruling ordering the employees’ reinstatement in February after the case was argued in September 2023.
The employees had appealed an earlier labour court ruling in which 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.
Macklemore rages against Israel’s Gaza genocide:
Grammy-winning rapper Macklemore this week became the first high-profile artist to not only speak out against Israel’s war on Gaza but also release a powerful song.
Titled Hind’s Hall, in it he calls for a ceasefire and expresses support for pro-Palestine student protests.
The urgent-sounding, hook-laden song, which calls Israel an apartheid state, is named after Columbia University’s Hamilton Hall, which occupying students recently renamed to commemorate six-year-old Hind Rajab, who was killed by Israeli forces in Gaza.
Macklemore will donate all streaming proceeds from Hind’s Hall, released on Monday, to the UN Relief and Works Agency for Palestine Refugees in the Near East.
In two minutes 49 seconds, the rapper manages to take on the anti-Zionism-equals-antisemitism trope (“I’ve seen Jewish brothers and sister out there and ridin’ in/ Solidarity and screamin’ ‘Free Palestine’ with them”); calls out the police brutality against protesting students and takes a swipe at US President Joe Biden for his support of Israel’s erasure of Gaza: “The blood is on your hands, Biden, we can see it all/ And fuck no, I’m not votin’ for you in the fall.”
In addition, Macklemore comments on the tedious ongoing beef between fellow rappers Drake and Kendrick Lamar that has preoccupied the hip-hop world: “I want a ceasefire, fuck a response from Drake/ What you willin’ to risk?”
The song is reminiscent of anti-Vietnam War protest music from the 1960s. However, the difference is that most prominent artists of today have remained silent on Israel’s war on Gaza.
The Macklemore song has gone viral on social media. On X, the academic Cornell West posted: “I salute my brother, Macklemore, using his powerful artistry to tell some painful truths!” Tom Morello, of 1990s political punk-rock band Rage Against The Machine and Bruce Springsteen’s current guitarist, responded: “Honestly, Macklemore’s Hind’s Hall is the most Rage Against The Machine song since Rage Against The Machine.”
‘Flayed rams hang above our sleep’ as disasters deprive us of our peace:
As the tanks enter Rafah many people find that, in the words of the great Greek poet Yannis Ritsos, “A dog cloud chews our sleep.” One can only imagine the impossibility of restorative sleep in Gaza, how the children who survive will confront the nights now and 20 years from now, how their children will inhabit the long dark hours before dawn.
When Shakespeare’s Macbeth kills Duncan, the Scottish king, to seize the throne he hears a voice declaring that “Macbeth does murder sleep” and goes on to give what must be among the most beautiful affirmations of the value of sleep in the English language.
Sleep, that knits up the ravell’d sleave of care,
The death of each day’s life, sore labour’s bath,
Balm of hurt minds, great nature’s second course,
Chief nourisher in life’s feast.
We need sleep to heal, to learn, to be creative, to be present in relationships, to work precisely and creatively. Driving tired can be worse than driving drunk. Without enough sleep relationships become brittle, work grey and flat and obesity, heart disease, diabetes, depression, cancer, suicide and dementia more likely.
The leading experts on sleep, including South African psychiatrist Hugh Selsick, recommend a similar set of strategies to recover the nourishment of sleep. Some, such as being in the sun in the morning, exercising during the day, sticking to a strict schedule of sleeping and waking times, avoiding caffeine and alcohol too late in the day, not eating after the evening meal, cutting out sugar and not scrolling a phone in bed are available to everyone. Others assume that one is not in hospital, or prison, that one has a job, that one does not live too far from that job, that stress is not so objectively overwhelming that it cannot be managed, that it is possible to feel safe in the room where one sleeps, that one doesn’t live in a shack under the “high mast lighting” that evokes a concentration camp rather than a neighbourhood and that it is possible to reserve a room for the sole purposes of sleeping and sexual intimacy. Among the recommendations that assume a home with the luxury of a room not used for sleep is that when sleep doesn’t come after 30 minutes it’s best to get up, move to a different room, and do something relaxing until one feels like sleeping.
Everyone will agree that checking Al Jazeera on the phone will not be a wise way to pass this time, that rooibos will be better than coffee and that Leonard Cohen or the new Abdullah Ibrahim album on low volume is a better idea than The Clash or John Coltrane’s Ascension. Reading is often recommended. Novels are a good idea. The measured pace of Orhan Pamuk or Toni Morrison seems like a better call than the more frenetic energy of Roberto Bolaño.
For those with the taste for poetry, choices are abundant and becoming richer as we add voices such as Yomi Sode, Ocean Vuong and Claudia Rankine to the global treasure chest.
If sleep is being stolen by how the world has been ripped apart and some of its people ripped away from others to be excluded from those who count as people, those who are worthy of our grief, then perhaps the worldliness and sense of the beauty of the world of the great communist poets may have something to say.
For Alain Badiou, the French philosopher, the communist idea must have a life apart from the actuality of states and parties describing themselves as communist. This is no evasion. Few would disagree that the idea of democracy — the rule of the people, all the people — should not be reduced to the states and parties describing themselves as democratic. For Badiou the communist idea centres on the recognition “that all belong to the same world as myself”, the axiom that “there is only one world” and the aspiration for “the emancipation of humanity as a whole”.
He observes that “in the last century, some truly great poets, in almost all languages on Earth, have been communists” and, mentioning Nâzim Hikmet, Pablo Neruda, Yannis Ritsos and Mahmoud Darwish among others, argues that:
“There exists an essential link between poetry and communism, if we understand ‘communism’ closely in its primary sense: the concern for what is common to all. A tense, paradoxical, violent love of life in common; the desire that what ought to be common and accessible to all should not be appropriated by the servants of Capital. The poetic desire that the things of life would be like the sky and the Earth, like the water of the oceans and the brush fires on a summer night — that is to say, would belong by right to the whole world.”
The poets that he mentions are all grounded in a radical openness to the universal, an unbordered apprehension of the beauty and power of being. They are also all men, and Badiou, writing in 2014, does not mention that Neruda was a rapist, something that became widely recognised in 2010. Some boundaries matter, and matter absolutely.
Aimé Césaire, the Martinican poet and certainly one of the great poets of the second half of the 20th century, is surprisingly absent. In his 1956 letter of resignation from the French Communist Party, in which he was clear that he was renouncing the party rather than the communist idea, Césaire insisted on “a universal enriched by all that is particular”.
The work of Darwish, the great Palestinian poet, and Ritsos is abundant with similar sensibilities expressed in poetic form. Both men knew political suffering, both suffered prison and exile and both found and affirmed beauty from within suffering.
Darwish gave us a brilliantly kaleidoscopic poetry of pomegranates, doves, gazelles, olives, salt, blood, love, lust, Jerusalem, Damascus, Andalusia, trees, butter?ies, rivers, coffee, memories, dreams, home, ri?es, tanks and mourning.
In the midst of the siege of Ramallah in 2002 he wrote:
Our coffee cups. And birds. And the green trees
With blue shadows. And the sun leaping from
one wall to another like a gazelle . . .
and the water in clouds with endless shapes
in what is left to us of sky,
and other things of postponed memory
indicate this morning is strong and beautiful,
and that we are eternity’s guests.
Ritsos could simultaneously write that “Flayed rams hang above our sleep”, that “High above the galaxy is fragrant with burnt fat and salt”, declare that “The wound speaks of life” and invoke “The root creeping in the stone”.
Both men offered profound visions of peace:
Darwish:
When a day gone is not a day lost
but a root that raises the leaves of joy
this is peace
Ritsos:
The dreams of a child are peace
Peace is the smell of food in the evening
Words of love under the evening trees are peace
There is a certain kind of directly stated international among some of these poets. Darwish and Ritsos were close. In Like a Mysterious Incident — composed before the knowledge of Neruda’s rape — Darwish writes:
“In Pablo Neruda’s home, on the Pacific
coast, I remembered Yannis Ritsos
at his house”
In Neruda’s lavish home he recalls a conversation in Ritsos’s austere home in Athens and a conversation where Ritsos says:
It is the mysterious incident, poetry,
my friend, is that inexplicable longing
that makes a thing into a spectre, and
makes a spectre into a thing. Yet it might also explain
our need to share public beauty …
For many of these communist poets the pomegranate, a symbol of beauty hidden behind an unremarkable exterior, is a powerful metaphor.
Darwish:
I am the son of what you do in the earth, son of my wounds
that have lit up the pomegranate blossoms in your closed up gardens
Ritsos:
we shall sow seed where they slept and a
pomegranate bud
shall burst like a baby’s first laughter at the sunlight’s breast
Hikmet:
the pomegranate that fruits one in one year
can fruit one thousand;
and the world is so large
so beautiful
Césaire:
Christmas arrived, announcing itself first with a tingling of desires, a
thirst for new tendernesses, a burgeoning of vague dreams, then with a?purple rustle of its great joyous wings it had suddenly flown away, and after
that its abrupt fall out over the village making shack life burst like an
overripe pomegranate.
Neruda’s life and Badiou’s masculinism mean there can be no absolute peace with the idea of the international of communist poets. We have to be unsettled, even when we need sleep to come on. But the opening to the universal, the abundant apprehension of beauty in times of suffering and the profound vision of peace in the work of people like Darwish, Ritsos and others does connect us to a humane way of being in the world in times of systemic organised cruelty funded and legitimated by the most powerful forces on the Earth.
Richard Pithouse is a research associate in the philosophy department at the University of Connecticut in the United States.
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