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[2021] ZALAC 36
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Mofokeng and Others v Rotek and Roschon SOC Ltd (JA43/2020) [2021] ZALAC 36; (2021) 42 ILJ 1902 (LAC) (25 June 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA43/2020
In the matter between:
ANDRIES MOFOKENG &
4
OTHERS Appellants
and
ROTEK
AND ROSCHON SOC
LTD
Respondent
Heard:
11
May 2021. Decided on record and appellants’ submissions.
Delivered:
Deemed
to be the date the Judgment is emailed to the parties for the first
time (
Friday
25 June 2021
).
Summary:
Refusal of condonation
for the late filing of a review confirmed on appeal.
CORAM:
Waglay
JP, Coppin JA
et
Molefe
AJA
JUDGMENT
COPPIN JA
[1] This
is an appeal against the judgment of the Labour Court
(Nkutha-Nkontwana J) dismissing, in favour of the
respondent, the
appellants’ application to condone the late filing of an
application to review an arbitration award of a
commissioner
(“arbitrator”) of the Commission for Conciliation,
Mediation and Arbitration (CCMA), concerning their
alleged unfair
dismissal by the respondent. Leave to appeal was granted on petition.
[2] The
issue is whether the Labour Court erred in refusing to grant the
condonation sought and, in particular,
whether it erred in concluding
that the review had no reasonable prospect of success.
The background facts
[3] The
appellants are Mr Andries Mofokeng, Mr Thapelo Molane, Mr Dingaan
Radebe, Mr Edward Mokoena and Mr Bongani
Maphumelo.
[4] The
respondent is a private company that was contracted by ESKOM Soc Ltd
(“ESKOM”) to perform specified
work in its
infrastructure, expansion and maintenance projects.
[5] The
appellants were employed by the respondent on fixed term contracts
that were renewed several times since
2007. The exact nature of the
work they performed appears to be in contention, but it was
essentially project specific, depending
on the nature of the project.
They were members of the National Union of Metalworkers (“NUM”).
[6] The
last project they were engaged on was the “Lulamisa”
project. It was initially conceived as
a two phase project, but the
second phase was delayed due to environmental issues. Because of
financial constraints, employees
of the respondent who were engaged
in other projects were transferred to the Lulamisa project, which, in
turn, exacerbated the
respondent’s adverse financial position.
[7] On
10 December 2014, the respondent’s manager, Mr Werner Greef,
had a consultation meeting with the unions
representing its
employees, including NUM, to discuss restructuring allegedly
necessitated by ESKOM’s “budget reprioritisation
for cost
saving”.
[8] At
the meeting,
inter alia
,
the restructuring was agreed to and that the LIFO principle would be
applied to the respondent’s respective team structures.
There
were essentially three teams, the foundation team, the steel team and
the floating team.
[9] The
respondent categorised the appellants as having been part of the
floating team. The appellants have contested
this categorisation and
aver that they were part of the foundation team. This latter aspect
is dealt with later.
[10] The
appellants’ fixed term contracts were to expire on 31 January
2015, but the respondent extended
their contracts to the end of
February 2015. On 26 January 2015, the appellants signed new
contracts that were to commence on 1
February 2015 and terminate on
28 February 2015.
[11] On
the same day, i.e. 26 January, the appellants were issued with
letters stating that their new contracts
were going to end on 26
February 2015.
[12] At
a meeting held on 12 February 2015, Mr Greef, the respondent’s
project manager, on behalf of the
respondent, informed the appellants
that they were selected for early termination because they were part
of the floating team,
whose work ranked behind the other teams in
order of importance. Their positions, as well as those of other
employees who were
engaged through labour brokers, were to be made
redundant.
[13] The
appellants’ employment with the respondent terminated at the
end of February 2015 and was not extended
or renewed by the
respondent beyond that date.
[14] The
appellants were especially aggrieved by the fact that certain of
their co-employees, who had been employed
with or after them, had not
been similarly affected and continued to be employed by the
respondent.
[15] Consequently
they referred an unfair dismissal dispute to the CCMA. The issues
that were to be resolved by
the CCMA were, essentially, the
following: (a) Whether the non-renewal of the appellants’ fixed
term contracts (i.e. at the
end of February 2015) constituted a
dismissal of the respective appellants, as contemplated in section
186(1)(6) of the Labour
Relations Act (LRA); (b) If so, whether their
dismissal(s) was procedurally and substantively fair; and (c) to
grant appropriate
relief.
[16] The
appellants essentially contended that they (individually) had a
reasonable expectation that their contracts
would be renewed further,
possibly, effectively converted into permanent employment, and that
they would have retained their employment
with the respondent if LIFO
had been applied. In respect of the latter, they essentially
contested their categorisation by the
respondent as members of the
“floating team”.
[17] An
arbitration followed after an unsuccessful conciliation process. The
appellants, represented by their union
NUM, gave evidence and called
witnesses in support of their case. The respondent also called
witnesses at the arbitration. The
arbitrator issued an award on 9
November 2015 in which he dismissed the appellants’ claim(s).
[18] Having
analysed the evidence, the arbitrator concluded that it was difficult
to find that the objective facts
supported the case of the appellants
regarding their expectation that their contracts would be renewed or
extended. The arbitrator
found that they did not prove that their
positions at the respondent had been retained; that they were
notified well in advance
that their contracts were not going to be
renewed any further; that there was a consultation with them, which
included the respondent’s
management and their union, where
that matter was discussed and that all of that could clearly not have
caused them to have a contrary,
yet reasonable expectation.
[19] The
arbitrator further found that the appellants were effectively of the
belief that they ought to have received
preferential treatment in
relation to other employees who were employed by the temporary
employment service (“TES”).
This notwithstanding the fact
that the evidence showed that as early as 2013 the respondent had
started a process of “targeted
selection” of employees
and that some of the TES employees had also been with the respondent
for substantial periods. The
appellants were not the only employees
affected by the restructuring. Other TES employees were also
affected. The arbitrator concluded
that the appellants had failed to
discharge their onus of proving that they were dismissed by the
respondent.
[20] The
appellants brought an application in the Labour Court to review the
award. It was late, thus their application
for condonation, which was
opposed by the respondent.
[21] Having
concluded that the delay had been caused by the appellants’
union, but that such negligence should
not be held against the
appellants personally, the Labour Court found that the arbitrator’s
award was “unassailable”,
and that the prospects of the
review succeeding “are explicitly deficient”.
Evaluation
[22] It
is trite that an applicant for condonation must make out a proper
case for the grant of that relief.
[1]
This not only includes giving a satisfactory explanation for the
delay, but also demonstrating that the applicant had reasonable
prospects of succeeding in the principal matter. No matter how good
the explanation, if there are no prospects of success the application
for condonation may have to be refused, because there would be no
point in granting condonation in those circumstances.
[2]
[23] The
appellants seemingly relied on more than one ‘cause of action’
for their claim for reinstatement.
They alleged,
inter alia
,
that they, respectively, had a reasonable expectation that their
fixed-term contracts would be renewed, or extended further, implying
that the non-renewal of those contracts by the respondent was
tantamount to a dismissal, but they also allege that the termination
of their employment for operational reasons was flawed because the
LIFO principle was not properly applied.
[24] In
a dismissal dispute, the onus is on the employee to establish the
existence of the dismissal.
[3]
If there is a dismissal, it is for the employer to prove that the
dismissal was fair
[4]
.
[25] A
“dismissal”, in terms of section 186
[5]
of the LRA, means in respect of an employee employed in terms of a
fixed-term contract of employment – one where there is
a
reasonable expectation that the contract would be renewed on the same
or similar terms, but the employer had offered to renew
it on less
favourable terms, or did not renew it at all - or if the expectation
was that the contract would be extended indefinitely
on the same or
similar terms, where the employer offered to retain the employee on
less favourable terms, or did not offer to retain
the employee at
all.
[26] The
employee bears the onus to prove the reasonable expectation on a
balance of probabilities.
[6]
The
test is objective and it is whether a reasonable employee would, in
the circumstances prevailing at the time, have expected
the employer
to renew his or her contact on the same or similar terms (or would
have extended it indefinitely on the same or similar
terms).
[7]
[27] The
test ultimately is whether an employee in the position of each of the
appellants (taking into account
all the circumstances objectively)
could reasonably have expected the employer to renew their individual
contracts as they allege.
In this instance, the answer is clearly
negative.
[28] As
found by the arbitrator, the appellants had been part of consultation
meetings where the issue of restructuring
was discussed and where it
had been made clear to them and their Union, in good time, that their
contracts would not be extended
beyond the end of February 2015 and
that their positions were to be made redundant. In light of all the
evidence, they could not
have entertained a reasonable expectation
that their contracts would yet again be extended (let alone
indefinitely), notwithstanding
the adverse economic situation the
respondent found itself in, and due to the ensuing restructuring
process, that not only affected
them, but also affected a number of
other employees who had been retained on a temporary basis.
[29] The
last contracts the appellants signed were only for one month, i.e for
February 2015, and this after they
had been told that their services
were going to be utilised beyond that date.
[30] The
appellants also have no reasonable prospect of showing that the LIFO
principle had not been properly applied
by the respondent. The latter
had categorised them as part of the “floating” team.
Despite their contestation of this
categorisation, the evidence
indicates that they were only employed and utilised when needed, and
were not dedicated to doing the
same work on every project they were
engaged on. In that sense they were “floating”. As their
counsel put it in the
heads of argument submitted on their behalf
“the appellants were employed for any work available to the
respondent at any
time which they could do.”
[31] According
to Mr Greef, none of the appellants were foundation workers. Mr
Mokoena and Mr Radebe were drivers,
but were used by the respondent
as (extra) storemen. The other appellants were “climbers”
and “lines men”
who performed a stringing function which
was usually subcontracted out, and so they were utilised wherever
they were needed. For
example, they would assist the foundation team
with a foundation project, and Messrs Mokoena and Radebe would be
utilised in the
stores (even if you could only have one storemen per
site). According to Mr Greef, the appellants were essentially
supplementing
the teams in each instance.
[32] The
other colleagues whom the appellants tried to use for comparative
purposes, namely, Messrs Msibi, Tsubela
and Makola, were not shown to
have been “floating” in that sense. Even though Mr Msibi
had started with the appellants
in 2007 he is not shown not to have
been part of the dedicated foundation team of workers. The appellants
also did not show that
Messrs Tsubela and Makola were not dedicated
to the steel and foundation teams. According to Mr Greef, they were
appointed at the
same time as the appellants. The documents relied
upon by the appellants’ representative at the CCMA hearing
largely confirms
that fact, but goes on to show, for example, that Mr
Tsubela was appointed on 1 October 2007 and Mr Mokoena only on 10
January
2008. Mr Makola was appointed on 21 February 2007.
[33] The
document shows that, of the appellants, Mr Mofokeng was appointed on
1 January 2007, Mr Molane on 1 October
2007, Mr Radebe on 1 May 2007,
and Mr Maphumelo on 1 January 2007. So, in fact, Mr Tsubela was
appointed at the same time as Mr
Molane, but before Mr Mokoena. Mr
Makola was appointed before Messrs Mokoena, Molane and Radebe. So the
contention is not correct
that “the appellants were appointed
before [Messrs] Tsabela and Makola”. The statement is also not
correct in relation
to Mr Msibi. He was appointed on 1 January 2007,
that is before Messrs Mokoena, Molane and Radebe, albeit at the same
time as Messrs
Mofokeng and Maphumelo.
[34] In
any event, Mr Greef testified that LIFO was applied within the team
structures. Mr Msibi was a foundation
team worker, and even though
the appellants (excluding Messrs Mokoena and Radebe) were assisting
the foundation team in the Lulamisa
Project, they were “lines
men” and were not part of the core foundation team. They were
also not the only employees
affected.
[35] The
fact that the appellants’ (respective) fixed-term contracts may
have been renewed by the respondent
each time since about 2007, could
not on its own have given rise to a reasonable expectation that they
would be renewed or extended
yet again beyond February 2015. If that
effect were to be regarded as decisive, as the appellants would have
it, it would mean
that the change in the respondent’s financial
position since about 2014, which called for restructuring and
retrenchment,
and the notice given to the appellants and their union
that their contracts would not be extended because of the
respondent’s
adverse financial situation, would have to be
ignored. That cannot be correct.
[36] It
has not been shown by the appellants that their application to review
the arbitrator’s award has
any reasonable prospect of success,
and the Labour Court was correct in its conclusion that in those
circumstances condonation
ought to be refused.
[35] In
the result, the following order is made:
1.
The
appeal is dismissed.
2.
No
order is made in respect of the costs of the appeal.
P
Coppin
Judge
of the Labour Appeal Court
Waglay
JP and Molefe AJA concur in the judgment of Coppin JA.
APPEARANCES:
FOR THE
APPELLANT: F
Baloyi
Instructed
by Mohale Attorneys Inc.
FOR THE
RESPONDENT: Edward
Nathan Sonnenberg Inc
[1]
See generally,
Melane
v Santam Insurance Co. Ltd
1962 (4) SA 531
(A) at 532 C-F;
National
Union of Mineworkers v Council for Mineral Technology
[1999] 3 BLLR 209
(LAC) para 10.
[2]
See
National
Union of Mineworkers v Council for Mineral Technology (above)
para
10
;
Collet v Commission for Conciliation, Mediation and Arbitration
[2014] 6 BLLR 532 (LAC).
[3]
Section
190(2)(a) of the Labour Relations Act 66 of 1995 (“LRA”).
[4]
Section
192(2) of the LRA.
[5]
Section
186(1)(b) of the LRA.
[6]
See,
inter alia,
SA
Rugby Players Association and Others v SA Rugby Limited and Others
[2008] 9 BLLR 845 (LAC)para 44.
[7]
Ibid.