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[2021] ZALAC 17
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Transnet t/a Transnet Freight Rail v NUMSA obo Manku and Others (PA11/2019) [2021] ZALAC 17; (2021) 42 ILJ 1948 (LAC); [2021] 10 BLLR 1004 (LAC) (29 June 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, GQEBERHA
Not
Reportable
Case
no: PA11/2019
In
the matter between:
TRANSNET
t/a TRANSNET FREIGHT RAIL
Appellant
and
NUMSA
on behalf of ZAMILE MANKU
First Respondent
NUMSA
on behalf of ARCHIE BOTILE
Second Respondent
TRANSNET
BARGAINING COUNCIL
Third Respondent
NALEDI
BURWANA-BISIWE N.O.
Fourth Respondent
Heard:
1 June
2021
Delivered:
29
June 2021
Coram:
Davis JA, Coppin JA and Savage AJA
Judgment
SAVAGE
AJA
[1]
This appeal,
with the leave of this Court, is against the judgment and orders of
the Labour Court (Lallie J) delivered on 9 March
2018 which dismissed
the appellant’s application to review the arbitration award of
the fourth respondent (‘the arbitrator’).
At the outset
of the hearing, the late filing of the appellants’ notice of
appeal and power of attorney was condoned, with
no opposition raised
by the respondents.
[2]
The first and
second respondents, Mr Zamile Manku and Mr Archie Botile (‘the
respondents’), both represented by the
National Union of
Metalworkers of South Africa (‘NUMSA’), were employed on
one-year fixed term contracts in East London
by the appellant,
Transnet trading as Transnet Freight Rail (‘Transnet’).
Mr Manku’s fixed term contract had
been renewed nine times and
Mr Botile’s contract renewed four times by Transnet. On 1
January 2015, a collective agreement
between Transnet and
representative trade unions was implemented in terms of which
inter
alia
it
was agreed that Transnet would from 1 April 2015 to 31 March 2016,
using its Recruitment and Selection policy, appoint a minimum
of 1472
employees on indefinite employment contracts. During January 2015,
the respondents were informed by their supervisor that
their fixed
term contracts would be renewed for a further fixed term on the same
terms and conditions. At the beginning of March
2015, the respondents
were given letters to sign in which they were required to acknowledge
that their fixed term contracts would
end at the end of March 2015.
The respondents refused to sign this acknowledgment as they claimed
to be permanently employed and
would not accept a further fixed term
contract renewal as a result. On 31 March 2015, with other contract
employees, they were
notified that their fixed term contracts had
expired. The respondents were not presented with new fixed term
contracts given their
refusal to acknowledge the expiry of their
previous contracts and accept a further contract renewal.
[3]
The
respondents referred a dispute to the third respondent, the Transnet
Bargaining Council, claiming that they had been unfairly
dismissed in
that they held a reasonable expectation that their contracts would be
renewed. In support of this claim they relied
on the repeated
renewals of their fixed term contracts; that they had been told that
some employees would be “made permanent”
as indefinite
positions were to be created by Transnet; and that they had heard the
President announce on television that contract
employees who had
worked for more than three months would be made permanent.
[4]
On 30 November
2015, the arbitrator found that the employees had been unfairly
dismissed in that they had held a reasonable expectation
of permanent
employment. The arbitrator did not have regard to the collective
agreement entered into between Transnet and representative
trade
unions in the workplace on the basis that, although the agreement had
been included in the bundle of documents, it was only
referred to by
Transnet in its closing argument.
[5]
Dissatisfied
with the arbitration award, Transnet sought that it be reviewed and
set aside by the Labour Court. On 9 March 2018,
Lallie J dismissed
the review application with no order as to costs. The Court found
that Transnet could not rely on the collective
agreement concluded
as, although available, as it was not disclosed at arbitration and
that the arbitration award had fallen within
the ambit of
reasonableness required. Thereafter, leave to appeal was refused on
15 May 2019.
[6]
On appeal,
Transnet disputed that the employees were unfairly dismissed since
they had refused to accept a further renewal of their
contract on the
basis that they had considered themselves to be permanently employed.
Consequently, the decision of the arbitrator
that the respondents had
been dismissed was not objectively justifiable. While Transnet in its
notice of appeal and heads of argument
took issue with the Labour
Court’s failure to consider the terms of the collective
agreement concluded on 15 December 2014,
in argument it was accepted
that the agreement was not relevant for purposes of this appeal.
[7]
It was
contended for the respondents on appeal that since they had been
employed on numerous prior fixed-term contracts, they held
a
reasonable expectation to be appointed for an indefinite period but
that they were not employed on that basis; and that the decision
of
the arbitrator that they had been unfairly dismissed was justifiable
in the circumstances.
Discussion
[8]
A dismissal is
defined in section 186(1)
(b)
of the
Labour Relations Act 66 of 1995 (‘the LRA’) to include
circumstances in which –
‘…
(b)
an employee reasonably expected the employer to renew a fixed
term contract of employment on the same or similar terms
but the
employer offered to renew it on less favourable terms, or did not
renew it.'
[9]
Whether
there has been a dismissal or not is a jurisdictional issue, since
the Commission for Conciliation Mediation and Arbitration
(‘the
CCMA’) or a bargaining council lacks jurisdiction in a
dismissal dispute where there is no dismissal.
[1]
This Court in
De
Milander v Member of the Executive Council for the Department of
Finance: Eastern Cape & Others
[2]
made
it clear that a
jurisdictional
ruling is subject to review by the Labour Court on objectively
justifiable grounds and not on the reasonableness
test set out in
Sidumo
.
[3]
The Court must in such instance determine whether, objectively
speaking, the facts existed which gave the CCMA or bargaining council
jurisdiction to entertain the dispute.
[10]
The onus rests
on the respondents to
show
that they had a reasonable expectation that their contracts were to
be renewed
.
The test to determine whether this onus has been discharged is an
objective one and involves a determination whether –
‘…
a
reasonable employee [would], in the circumstances prevailing at the
time, have expected the employer to renew his or
her
fixed-term contract on the same or similar conditions. But once it is
found that there had been a dismissal as contemplated
in s 186(1)(b),
the onus shifts to the employer to justify its fairness.’
[4]
[11]
The facts
relied upon by the respondents to bring their claim of dismissal
within the ambit of section 186(1)
(b)
were that
their contracts had been repeatedly renewed; they had been told that
some employees would be “made permanent”
as indefinite
positions were to be created by Transnet; that they had heard the
President announce on television that contract
employees who had
worked for more than three months would be made permanent; and that
they considered themselves to be permanently
employed.
[12]
None of these
facts supports a finding that the respondents discharged the onus
that rested upon them.
On their own
version the respondents
did
not expect a renewal of their fixed term contract, since they
considered themselves already to be permanently employed. This
is
fatal to the respondents’ case. This was the reason they
refused to accept that their contract had expired and why they
therefore did not receive an offer of a further fixed term contract.
The respondents knew that Transnet intended to renew fixed
term
contracts of employment, including their own. They were told as much
by their supervisor in January 2015 when they were informed
that
fixed term contracts would be renewed on the same terms and
conditions. After they were informed in writing of the expiry
of
their fixed term contracts the respondents refused to accept a
further fixed term contract renewal. Any announcement made by
the
President regarding employment contracts does not support the
respondents’ claim that they had been employed for an
indefinite duration. Even if their case had been that they held an
expectation that their fixed term contracts would be renewed
from 1
April 2015, which it was not, the facts and their own conduct were
destructive of such a claim.
[13]
It follows for
these reasons that the arbitrator erred in finding that the
respondents had proved their dismissal in terms of section
186(1)
(b);
and the
Labour Court erroneously found that
the
facts existed which gave the bargaining council jurisdiction to
entertain the dispute. For these reasons, the
appeal
must be upheld and the order of the Labour Court set aside and
substituted with an order that the bargaining council lacked
jurisdiction to determine the dispute since the respondents had not
proved that they were dismissed from their employment with
Transnet.
[14]
There is no
reason in law or fairness why an order of costs should be made in
this matter, nor did the appellant seek such an order.
Order
[15]
For these
reasons, the following order is made:
1.
The appeal is
upheld.
2.
The order of
the Labour Court is set aside and replaced as follows:
“
1.
The review application succeeds.
2.
The arbitration award is set aside and substituted with a finding
that the Transnet
Bargaining Council lacks jurisdiction to determine
the dispute given that the employees failed to prove a dismissal in
terms of
section 186(1)
(b)
of the
Labour Relations Act 66 of 1995
.”
_________________
SAVAGE
AJA
Davis
JA and Coppin JA agree.
APPEARANCES
:
APPELLANT:
Adv C Bester with Adv N Jongani
Instructed
by
Knowles
Husain Lindsay Inc.
FIRST
AND SECOND RESPONDENTS:
M Niehaus of
Minnaar Niehaus
Attorneys
[1]
SA Rugby Players’
Association (SARPA) and Others v SA Rugby(Pty) Ltd and Others;
SA Rugby (Pty) Ltd
v SARPU and Another (SA Rugby Players)
[2008]
ZALAC 3
;
[2008] 9 BLLR 845
(LAC) at para 39.
[2]
(2013)
34 ILJ 1427 (LAC) at para 24.
[3]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007]
ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28
ILJ 2405 (CC); 2008 (2) BCLR 158 (CC) at para 110.
[4]
SA
Rugby Players
n.1 at para 44.