The CCMA has ordered the Passenger Rail Agency of SA (Prasa), trading as Metrorail Western Cape, to recompense almost 200 of its workers to the tune of about R35.5 million.
Tzvi Brivik, attorney for the applicants, said on Monday the original applicants were 166 protection officers, Fin24 reported. They were later joined in the case by about 30 outsourced vehicle drivers. The applicants have been in the employment of Metrorail Western Cape on a series of fixed-term contracts.
Labour law amendments, however, entail that an employer may employ an employee on a fixed-term contract or on successive fixed-term contracts for longer than three months only under certain circumstances. Either the nature of the work for which the employee is employed must be of a limited or definite duration or the employer must have a justifiable reason for fixing the term of the contract.
The law provides that an employee employed in terms of a fixed-term contract for longer than three months must not be treated less favourably than an employee employed on a permanent basis performing the same or similar work unless there is a justifiable reason for different treatment.
The applicants were employed on a series of fixed-term contracts prior to January 1, 2015 and did not sign another contract after this time. Since then their basic remuneration was adjusted and brought in line with the basic remuneration paid to their comparable counterparts, who are "permanent" employees.
The applicants did not, however, receive the same benefits as that of their colleagues who are permanently employed. The applicants are not members of Prasa's provident fund and have not been given any bonus payments.
They wanted the CCMA to order Metrorail Western Cape to pay them the difference between what they were paid and are paid and what they would have been paid had they been treated as permanent employees.
Metrorail Western Cape argued that it is in a precarious financial and infrastructure position due to lower ticket sales and vandalism. It claimed the CCMA ordering compensation to be paid to the applicants would jeopardise Metrorail Western Cape's finances and probably cripple it, because there are about 378 other employees who were previously employed in terms of fixed-term contracts who might also then want to approach the CCMA.
On behalf of the applicants it was argued that Prasa's finances had no role to play in this case. On behalf of the applicants, it was also argued that there had been reports – including by the Auditor General – that indicate the financial woes of Metrorail Western Cape were due to "mismanagement" and the employees should not be punished for that.
CCMA commissioner Daniel du Plessis stated in his ruling that once an employee is deemed to have become "indefinitely employed", he or she was from that date onwards entitled to be treated on par with his or her colleagues. Failure to do this would constitute an unfair labour practice or could even amount to discrimination.
Du Plessis found that from the date the applicants became "permanent", they became entitled to be members of Prasa's provident fund and to receive bonus payments - including bonuses they did not receive previously.