Maoke and Another v Telkom (Soc) Limited and Another (15246/2019) [2020] ZAGPPHC 125; (2020) 41 ILJ 2414 (GP) (6 May 2020)

Maoke and Another v Telkom (Soc) Limited and Another (15246/2019) [2020] ZAGPPHC 125; (2020) 41 ILJ 2414 (GP) (6 May 2020)

The High Court found that the applicants failed to establish that Telkom's conduct amounted to an unfair labour practice under section 23(1) of the Constitution. The evidence did not support the existence of a concluded section 197 agreement or transfer at the time the VSPs/VERPs were offered, and thus no duty arose for Telkom to disclose information about a potential transfer. The LRA does not require consultation or information sharing of the kind sought by the applicants unless terms and conditions are to be altered, which was not the case. The applicants suffered no legally cognisable prejudice, as their employment terms remained unchanged after the transfer. The principle of...

Citation
[2020] ZAGPPHC 125
Parties
Applicant: Peka Meshack Maoke; Applicant: Essau Cyril Baloyi; Respondent: Telkom (SOC) Limited; Respondent: Combined Private Investigation CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
6 May 2020
Case Number
15246/2019
Procedural Posture
Constitutional Application / Final Judgment After Hearing
Outcome
Application dismissed.
Judges
VM Movshovich
Legal Topics
Unfair Labour Practice, Subsidiarity Principle, Section 197 Transfer, Voluntary Severance Package, Access to Information, Costs in Constitutional Litigation
Labour Law Constitutional Law Unfair Labour Practice Subsidiarity Principle Section 197 Transfer Voluntary Severance Package Access to Information Costs in Constitutional Litigation

Case Brief

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Parties

Peka Meshack Maoke

Applicant

Essau Cyril Baloyi

Applicant

Telkom (SOC) Limited

Respondent

Combined Private Investigation CC

Respondent

Procedural Posture

Constitutional Application / Final Judgment After Hearing

Legal Issues

  1. 1 Whether Telkom's failure to inform the applicants of the impending section 197 transfer constituted an unfair labour practice under section 23(1) of the Constitution.
  2. 2 Whether the applicants could rely directly on constitutional rights or were required to proceed under enabling legislation due to the principle of subsidiarity.
  3. 3 Whether Telkom owed a legal duty to provide information about the section 197 transfer during the VSP/VERP process.

Ratio Decidendi

The High Court found that the applicants failed to establish that Telkom's conduct amounted to an unfair labour practice under section 23(1) of the Constitution. The evidence did not support the existence of a concluded section 197 agreement or transfer at the time the VSPs/VERPs were offered, and thus no duty arose for Telkom to disclose information about a potential transfer. The LRA does not require consultation or information sharing of the kind sought by the applicants unless terms and conditions are to be altered, which was not the case. The applicants suffered no legally cognisable prejudice, as their employment terms remained unchanged after the transfer. The principle of...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • Each party is to bear its own costs.