File photo: Pexels
File photo: Pexels

Essential services workers may be set for Labour Appeal Court after 'bitter' ruling

By Ayanda Mdluli Time of article published Apr 30, 2020

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The Public Servants Association (PSA) may be gearing up for more court action at the Labour Appeal Court after a judgment that left a bitter taste in the mouths of 10 essential services workers who were given three months' worth of their salaries as financial compensation despite fighting their employer for five years in court.

The drawn-out case of 20 Gauteng EMS (Emergency Medical Services) workers who were fired in October 2014 has evolved into a complex legal wrangle for the PSA, the workers and possibly even the Gauteng Department of Health.

According to documents, about 20 employees were dismissed when the PSA gave the wrong advice to its members regarding the status of their over time payments and an unprotected industrial action. 

Information from court files suggest that when the unprotected strike took place, the department then moved to dismiss the employees without providing any ultimatums or a disciplinary process. The employees were accused of abandoning their shifts.  

The PSA has since denied that the employees had abandoned their shifts, and contended that the employees had merely thought that they were acting upon an agreement reached between the employer and the PSA to embark on a strike. 

Some employees feel they have been failed by the system after it also emerged that the person who was responsible for the miscommunication was, at the time, spared the axe and only got away with a written warning while the 20 others got fired.

This has left the PSA and its workers in a fix, as some of the employees, after fighting the case for five years, are considering an option either to go with the appeal or sue the PSA. 

Delivering his judgment at the Labour Court of SA last week, Judge Edwin Tlhotlhalemaje found that some of the 20 employees were denied any form of opportunity to be heard before they were dismissed. At least 10 have since been reinstated while the rest have been given three months salary as compensation.

“In a nutshell, the individual applicants were dismissed without being afforded any opportunity whatsoever to make any representations…

"Equally so, the PSA was also not afforded any opportunity to make representations on behalf of its members before their dismissals were confirmed. Ultimately, the dismissals were indeed precipitous, thus making them procedurally unfair,” he said. 

Granny Mashishi, a PSA member who had worked for Gauteng EMS as a basic ambulance assistant for seven years before losing her job said when she lost her job, she was expecting a final written warning, not a dismissal.

“I was accused of leaving work early which was not true. We were not even warned. One of my other colleagues even got a dismissal and a written warning at the same time, which shows how inconsistent they are. 

"I have not been working for five years fighting this case and I have only been given three months' salary as compensation.   

"My children are going to get pulled from school. I will lose my car and I will lose my house.

"How can the government be so cruel? I don’t know who to look for help. There is no communication. I am always sleeping and crying every day. 

"I don’t have a job, I am a single mother and I am a breadwinner and I pay a bond. I have lost all strength,” she said.   

Reuben Maleka, the spokesperson of the PSA, said the union has received the judgment and is consulting with their attorney to explore legal options because the three months “is inadequate”.

“We might take the matter further to the appeal court. The ultimate prize is reinstatement. Now more than ever, we need the skills which are not in abundance in the health profession. We cannot be losing people at this moment. 

"There was a miscommunication that happened from a bargaining council point of view and the employees are the victims of what was not communicated properly. 

"There is no breakdown in the relationship here between the workers and the employer,” he explained.   

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