Reasons why MultiChoice retrenchments are unlawful
23 August 2019
Information Communication Technology Union (ICTU) today gives its reasons as why it says the retrenchments at MultiChoice /MC(SA) are unlawful.
It is in the public domain that MC(SA) says its technology deployment and client usage of DStv Self-help and WhatsApp service has taken traditional functions of call center. This is the cornerstone of their argument.
What they have not told the public is that MC(SA) presented, forcibly by ICTU, that it prefers a hybrid system where its call center staff will be supplemented by third party agent, GUPTA owned company called iSON.
MC(SA) “unfiltered or original” retrenchment letters to workers on the 21st June 2019 doesn’t have a single word of either enlisting “third-party” or “ “hybrid model”.
Therefore MC(SA) cannot have it both, as it wants to, to retrench on technological basis but still uses “hidden third-party” at the same time.
What does the law allows?
The law allows that if employer argues that the reason for retrenchment is technology, therefore logical reason that should follow is that the employer must prove redundancy. This is not what MC(SA) says. They are doing hybrid model a combination of taking calls and using third party.
What is the benefit of using third party
It is two ways. It is either the capability of third party versus the current internal system or the financial savings. What is the material (undisputable) fact is that MC(SA) call center agents provide world class service that is 95.6% according to MC(SA) records. So they have the capability that leave one reason which is for financial purposes.
Therefore it follows that MC(SA), a R50.4bn profit company retrenchments are based on hidden financial gains.
Why ICTU comes to this logical conclusion?
It is because ICTU has asked the following which were not answered till to date:
why have MC(SA) failed to disclose listing of third-party to workers on their retrenchment letter?
Why it failed to provide when, where was the advert for third party was listed in the public domain?
What was the scope of services required for the third party?
Why has MC(SA) cancelled Bytes contract in 2018? As they have presented in the proceedings?
Why has MC(SA) has arrogantly refused to give us minutes of the first un-facilitated meeting which is in their possession recorded by them and agreed to distribute to parties?
ICTU reason that un-facilitated meeting where it presented its questions orally, without providing them upfront, has left MC(SA) in uncomfortable position and thus expose their ulterior motive.
ICTU has evidence and presented to the facilitated meeting by the commissioner that MC(SA) has amended years of service of workers (on the 5 Aug 2019) behind close doors after the unfacilitated meeting which sought to cover loop holes, hence why they don’t want to give ICTU minutes which we have on record agreed to disseminate and twice requested them.
What does the law(Labour Relations Act) says on relevant information required?
Section 189(4)
a, “the provision of Section 16 applies, to disclose in terms of subsection 3
b, In any dispute in which the arbitrator or the Labour Court is required to decide whether or not any information is relevant, the onus is on the employer to prove that the information that it has refused to disclose is not relevant for the purposes for which it is sought”
- Therefore, ICTU request of GUPTA company scope and mandate as it forms part of “hybrid model” is relevant and is central to the proceedings.
- The raw data of customer change in behavior (in-coming calls has drastically reduced in three years and customer usage of self-help) is central to MC(SA) rationale.
Section 16(10) LRA
In any dispute about the disclosure of information contemplated by Subsection (6), the commissioner must first decide whether or not the information is relevant
False presentation of retrenchments
MC(SA) has presented false data which “purportedly” shows change in customer behavior on their presentation. Funny and absurdly, MC(SA) has not given us numbers of how many customers are using digital platform and for what purposes and are the reasons similar to why customers are using call center service?
For over 35 days, MC(SA) has denied giving ICTU information pertaining to raw data used on their slides. Even after they committed to give ICTU access to investigate on “live” system information relating to change of customer behaviour details and it is details MC(SA) they purported to be so. Reason is simple, they are blatantly and patently lying. We said to the truth of the matter is in the details and it is these details they refuse to provide.
You be the judge.
Why the strike is lawful?
MC(SA) has served workers with end date of retrenchments notice and confirmed that the payments would be 31 August 2019. The truth is that the proceedings are expected to conclude on the 11 September. This renders retrenchments concluded. It doesn’t take modern Einstein to see that retrenchments are concluded unlawfully.
Sec189(7)(b) LRA
188(7) “If a facilitator is appointed in terms of subsection (3)(4), and 60 days have elapsed from the date on which notice is given in terms of sec 189(3)-“
b)” a registered trade union or the employees who have received notice of termination may either-“
(i) “give notice of a strike in terms of Sec64(1)b or (d)”
Sec64(1)(b)
64(1) “Every employee has a right to strike and every employer has recourse to lock-out if-“
b)”in the case of proposed strike, at least 48 hours notice of the commencement of the strike, in writing, has been given to the employer”
MC (SA) has served workers with termination letter and confirm their last payment would be 31 Aug 2019 therefore, retrenchments are concluded to some. This gives rise to strike. Factually, this termination is premature since proceedings are concluding on the 11 Sept. Only three official meetings were held and the law require at least for official meetings to be held.
Why MC(SA) didn’t go to the courts to declare strike unlawful on urgent basis?
MC(SA) has made R50.4bn profit and has backing of top legal representative, surely they have money to go to courts but were afraid of being embarrassed by the courts. This is the motive why they send communication to workers to intimidate them as a means of divide and conquer strategy.
What is ICTU Core demands
That retrenchments be stopped with immediate effect and all workers that were force to take VSP should be reinstated
That all TES must be confirmed to be employed consistent with Constitutional Court Judgement on labour brokers in 2018
That in the alternative:
We proposed VSP Offer (rationale is with employer of what informs the proposal) as follows:
VSP Proposal
Notice pay is as proposed:
12 months’ notice pay
Exgratia of R200 000.00 once off
6 Weeks of pay for each year completed
Study grant of R50 000.00
Full bursary and stipend of R3000 p/m for employees studying above
Support, till completion, of current bursary recipients with stipend, similarly to above
Full performance bonus paid
Pay unused leave days
Provide financial education prior to paying money out to workers
Maternity leave ‘contractual mistake’ written off
Employees contracted long term illness owing to workplace matters should be given support till completion. eg Depression
DStv discount at 70% over 12 months
MC(SA) Intimidation tactics
Today, 23 Aug at 9:20, MC(SA) has deployed a lunatic, charlatan of the highest order Nonhlanhla Sibanda to intimidate and harass workers and tell them that they will be dismissed with immediate effect if they join the strike.
We have been informed that MC(SA) will deploy extra security guards to intimidate workers internally and lock doors.
Our response to this is “you can force it to the river but you can’t force it to drink that water”. We further remind them that “they can’t stop an idea whose time has come to realize”.
Workers have decided their destiny lies with ICTU and we shall liberate them from slavery of MC(SA).
Next step
ICTU will write a letter to the board requesting full enquiry and that management must be held to account. This letter will be sent on the 25th August 2019.
Failure to act by the board, we will then look into fitness of the board to perform their fiduciary duties according to the Company’s Act. It’s gonna be a long road.
ICTU will present its memorandum on the 26th Aug 2019, at 12:00. Ka nako ya badimo translated to “ancestral time” by Africans customs.
Issued by Thabang Mothelo, ICTU Media Officer, 23 August 2019
