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[2002] ZALAC 37
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Prasad v Lebea and Others () [2002] ZALAC 37 (20 December 2002)
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
Case No: JA
12/02
In
the matter between:
PRASAD, ADEPU
KOTESWARI Appellant
and
LEBEA,
MOHALE First Respondent
UNIVERSITY
OF VENDA Second Respondent
COMMISSION
FOR CONCILIATION Third Respondent
MEDIATION
AND ARBITRATION
____________________________________________________________________
J U D G M E N
T
_____________________________________________________________________
GOLDSTEIN
AJA:
[1] The
appellant was employed by the second respondent on a fixed term
contract basis from 1 January 1991 to 31 December 1993, from
1
January 1994 to 31 December 1995, and finally from 1 January 1996 to
31 December 1998. Thereafter the second respondent failed
to enter
into a new contract of employment with the appellant.
[2] Appellant
contends, and the second respondent disputes, that she was dismissed
by it. In support by her contention she invokes
the following
provisions of section 186 of the Labour Relations Act 66 of 1995 (the
LRA):
" 'dismissal' means that -
...
an
employee reasonably expected the employer to renew a fixed term
contract of employment on the same or similar terms but the employer
... did not renew it; ..."
[3] The matter
was eventually, in terms of section 136 and 191(5)(a)(i) of the LRA,
referred for arbitration to the first respondent,
who found that the
requirements for dismissal reflected in the provisions of section 186
relied upon were not satisfied.
[4] The
appellant took the matter on review to the Labour Court, where
Pillay
AJ
(as
she then was) dismissed the application with costs. With the leave
of the learned Judge the appellant now appeals to this Court.
[5] In
his award the first respondent deals with his decision in regard to
section 186 in the following terms (I have numbered the
paragraphs
for ease of reference):
"1. Mr Le Roux argued on behalf of the
employee that the employer's failure to appoint the employee amounted
to a dismissal contemplated
in Section 186(b) of the LRA. He relied
on the unreported case of Andreas Dierks vs University of South
Africa (unreported LCJ 399/98)
and argued that the employee had the
legitimate expectation that the employer will re-appoint her at the
expiry of her contract in
December 1998.
I do not agree with the reasoning advanced by
Mr Le Roux in this regard. In the same case he is relying on, the
court quoted
with approval the view of Professor Olivier on the
application of Section 186(b). In paragraph 136 the court relied
on the following
extract from Professor Olivier's article on this
subject:
'What is required in order to activate the
provisions of Section 186(b) is an expectation that the fixed-term
contract in question
would be
renewed
on the same or similar terms. It is evident that the Act does not
require that or regulate the position where the expectation implies
a
permanent or indefinite relationship on an ongoing basis. (See the
Wood case discussed above, see also
Colavita
vs Sun International Bophuthatswana
Limited
(1995) BLLR 88
(IC) at
93E
, and the obiter remarks made in
FGWU vs Letabakop Farms (Pty) Limited
1995 BLLR 23
(IC) at 31B-C
. The
reference to renewal on the same or similar terms supports that this
is the inference to be drawn from the wording of the subsection.
What Section 186(b) apparently envisages is that an employer should
not be allowed not to continue with fixed term employment in
circumstances where an expectation of
renewal
is justified.'
3. It is clear from the above extract that the
employee can only rely on legitimate expectation contained in
Section
186(b)
of the
Labour Relations Act if
her contract has been
renewed
in previous occasions. In this matter it is not in dispute that each
time the employee's contract expired the contract was not
renewed
.
The employer advertised the position and the employee competed with
other external candidates.
4. In paragraph 149 of the
Andreas
Dierks v/s University of South Africa
the court agreed with the view expressed by Professor Olivier that
legitimate expectation as contained in
section 186(b)
of the
Labour
Relations Act does
not include an expectation for permanent
employment. It should therefore be confined to cases where there has
been prior
renewals
of a fixed term contract. In the
employee's situation, the employee was appointed after succeeding in
an interview and therefore
there was no
renewal
of the contract."
[6] There can be
no objection to paragraphs 1 and 2 of the passage quoted. In
paragraph 3 the first respondent expresses the view
that, where an
employer advertises a position and the employee competes with
external candidates, the employee's contract is not
renewed within
the meaning of that term in
section 186(b).
This view of the law may
well be correct. However, I need not decide the point finally
because there is no question that the view
is justifiable in relation
to the reasons given for it. See
Shoprite
Checkers (Pty) Ltd v Ramdaw NO and Others
[2001] 9 BLLR 1011
at 1024 H-I. In
this
case at 1020A
Zondo
JP
gleaned inter alia the following principles from
Pharmaceutical
Manufacturers of SA : in re Ex Parte President of the RSA
2000(2) SA 674 (CC):
"(4) a
court cannot interfere with a decision simply because it disagrees
with it ...
a decision
that is objectively irrational is likely to be made only rarely;
...."
[7] The remarks
relating to an expectation of permanent employment in paragraph 4 of
the passage quoted from the award, are justifiable,
since they accord
with the view of a Professor Olivier quoted with approval by the
Labour Court in
Dierks
v University of South Africa
(1999) 20 ILJ 1227(LC) at 1246J - 1247B. Moreover the statement as
to an "expectation for permanent employment" is borne
out
by the appellant's evidence during the arbitration in the course of
which she said that, once she had obtained South African
citizenship
on 2 December 1998, she expected to obtain permanent employment. Mr
Cook who appeared for the appellant but did not
draw the her heads,
argued valiantly before us that the second sentence in paragraph 4 of
the passage quoted did not rationally flow
from the first. He
stressed the word "therefore" in the second sentence. It
may be that the connection between the two
sentences is tenuous and
that the award is not drafted as clearly and elegantly as it should
have been. However, the context makes
clear what the first
respondent was conveying:
section 186(b)
does not apply to a
situation where the expectation is one of permanent employment, and a
contract is not renewed unless there have
been prior renewals. The
first of these propositions is not irrational and may even correctly
reflect the law, and the second is,
at best for the appellant,
questionable but not such as to justify intervention on review.
[8] Mr
Cook submitted that the appellant's case was that she should not have
been interviewed at all once she had obtained South African
citizenship and should have been permanently appointed thereafter
without further ado. The point does not avail the appellant because
the first respondent found on a justifiable basis that
section 186(b)
does not cover an expectation of permanent employment. Moreover, on
the day she obtained her South African citizenship the appellant
herself called in writing for the second respondent "to arrange
the interview" for her post. She did at one stage in evidence
in
a passage Mr Cook referred us to say that the second respondent's
policy provided for her contract to be renewed without an interview.
Later, however she watered this version down: when she was asked
whether the obtaining of citizenship meant automatic appointment
or
the enhancement of her chance of employment she said the latter
applied.
[9] Once
the first respondent's finding that there had been no dismissal
cannot be faulted on review, it is clear that the application
before
the Court a quo correctly failed. Mr Cook asked us not to award the
second respondent its costs because the appellant is
a single mother
and she had been promised a permanent post by members of staff of the
second respondent. Mr Laka, who appeared for
the second respondent
asked for costs and pointed to the weakness of the appellant's case.
In my view none of the factors relied
upon by Mr Cook justify us in
not awarding the second respondent its costs. This appeal was
entirely ill-advised. In the result:
The appeal is
dismissed with costs.
____________________
E
L GOLDSTEIN
Acting
Judge of Appeal
I
agree
____________________
R M M ZONDO
Judge
President
I
agree
____________________
D Mlambo
Acting
Judge of Appeal
For the
Appellant: A L COOK
Appellant's
Attorney: Van Zyl Roos
For
the Second Respondent : A P LAKA
Second
Respondent's Attorney: Lebea and Associates
Date
of Hearing: 12 November 2002
Date
of Judgment: 20 December 2002