CWAO IN THE NEWS

This after the Casual Workers Advice Office (CWAO) lambasted Simba for the alleged 172 planned layoffs of workers who were outsourced from Workforce Staffing last week Friday, who have been placed at the Isando plant in Kempton Park, Ekurhuleni, for more than three years.

The workers' office deems that these employees belong to Simba because of a provision in the Labour Relations Act amendments of 2015 that labour broker workers automatically become employees of the client company after three months of employment.

General manager of Simba Gareth Haarhoff said:

We received written communication in respect of this matter last week following social media posts. Workforce Staffing, as the employer of the group concerned, is currently engaging with its employees to resolve the situation. Haarhoff added that as a responsible employer, Simba complied with all labour legislation within South Africa and required its support service providers to be equally compliant.

“We respect the decision of Workforce employees to escalate matters using established legal channels where they regard it necessary,” Haarhoff further said.

Meanwhile, the commercial executive of Workforce Staffing Solution, Jéandie Leone, maintains that the narrative that the temporary employment service must absorb employees permanently after three months is false.

“We believe that the Workforce Staffing employees allege that Simba is obliged to employ them permanently after three months. This narrative often arises in the context of the controversial “deeming provision” in section 198 A of the LRA, in which controversy is created and exacerbated by inaccurate media reporting and anti-labour brokering narratives on its interpretation.”

Leone said that employees were led to believe that labour broker employees become permanent employees of the TES client after three months of employment. This is factually incorrect.

In this instance, it is denied that any contravention of the Labour Relations Act took place or is envisioned. Employees have legislative avenues at their disposal to challenge any dismissals they allege to be unfair. Leone further said: “Workforce also places on record that Simba does not execute any labour-related functions falling under the auspices of the LRA in respect of Workforce employees and should, therefore, not be implicated in any wrongdoing in the alleged dismissals of Workforce Staffing employees.”

Leone cited a Constitutional Court ruling that was upheld in 2018 of Assign Services vs National Union of Metalworkers of SA and Others [2018] BLLR 837 (CC), which ruled employers would have to insource employees that used labour brokers after three months. In addition to that, she underlines that the judgment makes it clear that the section does not mean a transfer to a new employment relationship, but rather “a change in the statutory attribution of responsibility”.

“Section 198A furthermore makes it clear that it applies only for purposes of the Labour Relations Act, and no other labour laws,” added Leone.

Casual workers office breathes fire at Simba

The CWAO, on the other hand, argued that Simba had deliberately broken the law by continuing to treat its deemed employees as though they belonged to the labour broker, even though these workers were not temporary replacements for permanent workers who were on leave or performing a temporary service.

“Last week, 150 workers were told by Workforce to come in and sign a separation agreement or not bother to come back to work at all. Only 52 went and signed the agreement on the spot because they were threatened with never getting work from the labour broker again. The rest of the workers were told verbally that there was a new labour broker at Simba and there was no more work for them,” said CWAO organiser Jacob Potlaki.

He further alleged that the workers were also intimidated and threatened not to tell anyone that they had been fired, or else the labour broker would never find them work again at any other employer.

According to the separation agreement that City Press has seen, the terms included are as follows:

The employee's last day of service is 10 September 2023. The employee will receive his salary for all days worked up to and until 10 September 2023;
The employee will receive remuneration for any leave which is owing to the employee;
The employee will receive payment of the aforesaid by no later than 29 September 2023;
Statutory deductions will be deducted from the above amount;
The employer will endeavour to find alternative employment for the employee at another one of its clients.
This agreement will be seen by both parties as confidential and sensitive and no details on the terms of the settlement will be made public including to other employees or further employees of the employer

This constitutes a full and final settlement of all present and future claims and disputes which the employee may have against the employer that may emanate out of the termination of the employment relationship for any reason whatsoever and any reason contained in the Labour Relations Act otherwise in any forum including the CCMA.

Potlaki told City Press that the Casual Workers Office intends to take legal action on the matter.

Labour law expert weighs in

According to labour law expert Michael Bagraim, it is about time that the issue of TES is clarified. The present dispute between the staff and Simba is a case in point. The staff, working for longer than three months and earning under the threshold, are indeed solely working for Simba. They are not working for Workforce Staffing Solutions.

“The Assign Services case specifically makes the law absolutely clear. Anyone who works longer than three months in a particular workplace, despite the fact that they were sent by a TES, and earns less than the threshold, which is approximately R21 000 per month then those staff members are working permanently for the clients (now the employer). The reality is Simba is the permanent employer and Simba has all the liability attached to the employment relationship,” explained Bagraim.

He further said that all the staff earning under the threshold automatically by effluxion of time are moved to the employment relationship of Simba and not the original employer (the TES).

“The new employer, after three months, has the liability completely. They need to follow section 189A process. All the rights and duties between the employer and employee now reside between the staff and Simba and there is no relationship whatsoever between the staff and Workforce Staffing Solutions. Workforce Staffing Solutions in this relationship are now merely the administrators who, among other services, pay salaries and UIF,” he said.

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Category: MEDIA COVERAGE | DISPUTES