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[2011] ZALAC 8
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Joseph v University of Limpopo and Others (JA14/09) [2011] ZALAC 8; [2011] 12 BLLR 1166 (LAC);(2011) 32 ILJ 2085 (LAC) (13 May 2011)
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
HELD AT JOHANNESBURG
APPEAL CASE NO: JA14/09
In the matter between:
M V JOSEPH
….......................................................................................................
Appellant
and
UNIVERSITY OF LIMPOPO
…...................................................................
First
Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
…....................................................
Second
Respondent
P P MOTAKE N.O.
…................................................................................
Third
Respondent
JUDGMENT
JAPPIE JA
Introduction
[1] This is an appeal against a
judgment of the Labour Court in which judgment the Labour Court
reviewed and set aside an arbitration
award of the third respondent.
In the award, the first respondent, the University of Limpopo (“the
university”), was
ordered to reinstate the appellant, Dr MV
Joseph, to his position as at the time and date of his dismissal
without loss of any
benefit or salary. The university was further
ordered to pay to the appellant back pay in an amount of R71 355.00.
The third respondent
made no order as to costs.
[2] The university sought to review
the aforesaid award and on 15 August 2008. The Labour Court found in
favour of the university
and made an order to the effect:-
“
1.
. . .
2.
The arbitration award issued by the second respondent dated 1 June
2010 is reviewed and set aside, with costs.”
[3] The appellant sought and was
granted leave to appeal to this Court against the aforesaid judgment
and order of the Labour Court.
Background
[4] The appellant is originally from
India. In May 1997 he was appointed on a fixed term contract of three
years as a senior lecturer
at the university. In his evidence before
the third respondent he explained that he had developed an interest
in South Africa and
regarded working in South Africa as a challenge.
He wanted to work at a rural university such as the University of
Limpopo. He
explained that he had given up a professorship at the
University of KwaZulu-Natal and had accepted the position of senior
lecturer
on a three year fixed term contract just to pursue his
passion at a “non-elitist” rural university that catered
for
disadvantaged students.
[5] At the end of the three year
period, when his fixed term contract had come to an end in 2000, the
university advertised his
position. According to the appellant this
was a formality in order to comply with the legislative requirement
pertaining to his
employment as a non-South African citizen. He
applied for and was appointed to his position for a further period of
three years
and once again on a fixed term contract.
[6] During the time the appellant was
employed by the university he developed two programs, Contemporary
English Language Studies
(CELS) and Multilingual Studies (MUST or
MULST). These programs were unique in the country and were to be
offered in Applied English
Language Studies. The CELS and MUST
programs used students’ home language as a medium of
instruction in the teaching of English.
[7] Approval of the new program was
obtained from the Qualifications Authority and the Council of Higher
Education. The appellant
arranged for funding from the Ford
Foundation. The program was however blocked by the head of the School
of Language and Communication
Studies – Professor Louw. It was
only after an appeal to the executive dean of the faculty that an
internal memorandum prepared
by the dean confirmed firstly; that the
program would be offered from the year 2003 and secondly that the
appellant would play
a central role in offering the CELS and MUST
modules.
[8] In addition Dr Payle – who
belonged to the Theology Department – was also negative towards
the introduction of the
aforesaid modules.
[9] As it was anticipated that the
appellant’s fixed term contract would expire at the end of
2003, the appellant became anxious
when towards the end of his post
was not advertised. It had by then become a formality for his post to
be advertised just before
his contract would come to an end, he would
then apply and be re-appointed to that post.
[10] On 1 September 2003, the
appellant addressed a letter to the Human Resource Department of the
university wherein he stated
the following:
“
I
have assumed that because of my involvement in teaching the new
undergraduate BA degree that CELS and MUST offered under the School
of Languages and Communication and the foundation modules under CADAC
that my services will be needed by the university, and that
therefore
my contract will be renewed further. Further, both the School of
Languages and Communication studies and CADAC know that
I am a
project leader in 2 (two) research projects which will continue for
the next few years and will result in building black
research
capacity. They also know that I am supervising post-graduate
student’s dissertation work. I have Professor Teffo,
Dean of
Humanities letter to Dr K Payle stating that I am one of two staff
central to CELS and MUST.”
[11] On 3 September 2003, the
appellant received a response from the university indicating that is
was a requirement of the Department
of Home Affairs that the position
be advertised and as such it was required of the appellant to apply
for the post if he wished
to have his contract renewed.
[12] The appellant became concerned at
the delay in the advertising of the position and the impact it would
have on the renewal
of his contract. He, in this regard, addressed a
memorandum to the Vice Chancellor, Professor Mokgalong requiring
written clarification
about his position.
[13] On 20 November 2003 Professor
Mokgalong addressed a letter to the Department of Home Affairs
motivating for the extension of
the appellant’s work permit.
The letter reads as follows:
“
I
am writing to request an extension of 3 months from Jan 1, 2004 to
March 31, 2001 for the current work permit of Dr. Michael Joseph,
Senior Lecturer at the University of the North. This extension is to
enable the university to advertise his post so that he can
apply for
it.
Dr
Joseph’s current work permit expires on 31December 2003.
The
university undertakes to advertise his post immediately from the
Faculty of Humanity, School of Language and Communication Studies,
and complete the process of selection by Jan 2004, so that the
successful candidate can assume duties on February 1, 2004.
I
urge you to view this application favourable.”
[14] The post for a senior lecturer in
English in the Facility of Humanities was advertised in December
2003.
[15] In the meantime the appellant had
applied to and was offered an appointment at the University of the
Witwatersrand. On 2 December
2003 the appellant sent an e-mail to the
University of the Witwatersrand declining the appointment which that
university had offered
to him. The relevant e-mail reads as follows:
“
I
hope you have received my email requesting till today to give you a
response to the offer of an appointment at Wits.
I
am still not absolutely sure that I am doing the right thing but I
have just been assured by UNIN Management that my post will
be
advertised this month and an appointment made by the end of January
2004. Given my training and experience and because of the
many
projects that I have started at UNIN, I stand a very good chance of
being retained at UNIN. These projects are in the niche
area of
multilingualism and are particularly relevant to the Limpopo
province.
In
the light of this development I have to refuse the Wits offer. I do
this with great regret and even with a sense of insecurity
because I
have no guarantees at UNIN. As I have explained to you, I would like
to continue at UNIN, there was even a small chance
that I could be
retained there and now this chance, though still small, seems very
possible.”
[16] The appellant then applied for
the position as advertised. The outcome of the interviews conducted
subsequent to the advertisement
was that the appellant was
unsuccessful. The outcome of the interview process was that the panel
recommended that a Dr Dlamini-Sukumane
be appointed as the successful
candidate. The appellant was placed as the second best candidate for
the position.
[17] Very shortly after accepting the
position Dr Dlamini-Sukumane resigned and the position of senior
lecturer was once again vacant.
Nevertheless, the university declined
to appoint the appellant to that position.
[18] The appellant was formally
advised on 26 January 2004 that his application had been
unsuccessful. On 11 February 2004 the appellant
referred the matter
to the Commission for Conciliation Mediation and Arbitration (CCMA).
On 19 March 2003 the CCMA issued a certificate
of outcome that the
matter remained unresolved and it was referred for arbitration.
The Arbitration
[19] At the arbitration the appellant
alleged that the university had caused him to be unfairly dismissed
by failing or refusing
to renew his fixed term employment contract
after it allegedly created a reasonable or legitimate expectation
that it would be
renewed. He relied on s186 (1) (b) of the Labour
Relations Act 66 of 1995 (the “LRA”). The relevant
section provides:
“
(1)’
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 offered
to renew it on less favourable terms, or did not
renew it;”
[20] He further alleged that the
university discriminated against him in failing or refusing to
appoint him or to renew his contract
after an interviewing process
which he alleges was unfair.
[21] The third respondent was the
commissioner and the arbitration proceeded before him. After having
heard evidence from the appellant
and his witnesses and evidence on
behalf of the university, the third respondent came to the following
conclusion:
“
I
further, therefore, find that the respondent dismissed the applicant
when it failed or refused to appoint him after the said interview
and
therefore, failed to renew the said contract.
The
said dismissal is, without saying, unfair both substantially and
procedurally.”
The third respondent ordered that the
university reinstate the appellant without loss of any benefit or
salary. He further ordered
the university to pay to the appellant
back pay in an amount of R71355.00. No order as to costs was made.
On Review
[22] The university was unhappy with
the outcome of the arbitration proceedings and brought an application
in the Labour Court for
the review and the setting aside of the third
respondent’s award. The university sought the review on the
following grounds:-
That the arbitrator did not have the
necessary jurisdiction to arbitrate the said matter;
That the award and the reasons
therefore are not justifiable, as there is no rational objective
basis justifying the connection
made by the arbitrator between the
material facts before him and the conclusion he eventually arrived
at;
The arbitrator did not apply his mind
to the documentation before him, and furthermore did not apply his
mind to the evidence
used by the various parties;
The arbitrator’s award is in
any event reviewable on the grounds that he ignored direct evidence
before him, and relied
on evidence which was not before him;
The arbitrator furthermore committed
a serious error of law, and his award was inconsistent with the
right of the applicant to
a fair labour practice; and
The accumulative effect of the
misdirections of the arbitrator resulted in a failure of justice.
[23] The review was heard before Mr
Justice Molahlehi who came to the following conclusion:
“
[33]
It is evidently clear from the above that after failing to afford the
successful candidate and opportunity to be heard during
the
arbitration proceedings, the Commissioner issued an award whose
consequence was undoubtedly detrimental to the successful candidates
interest. Accordingly in conducting the arbitration to finality
without affording the successful candidate an opportunity to be
heard
and making a finding whose consequences had negative implications to
her the commissioner committed a gross irregularity.
[34]
In the light of the above I deemed it unnecessary to consider the
other grounds of review raised by the applicants in its founding
papers. I also do not deem it necessary in the circumstances of this
case to refer the matter back to the CCMA in as far as the
issue of
non-joinder is concerned.”
The Labour Court then made an order
upholding the review and set aside, with costs, the third
respondent’s award.
On Appeal
[24] In upholding the review the court
a quo
did so after consideration of a single issue. The court
a quo
held that the third respondent had committed a gross
irregularity in conducting the arbitration to finality without
affording the
successful candidate, Dr Dlamini-Sukumane, an
opportunity to be heard and by making a finding which consequences
had negative implications
for her.
[25] Counsel for the university, at
the commencement of his address to this Court, correctly conceded
that the court
a quo
had erred in reviewing and setting aside
the award of the third respondent on the ground of the non-joinder of
Dr Dlamini-Sukumane.
[26] In
Gordon
v Department of Health, KwaZulu-Natal
1
the following was held:-
“
The
issue in our matter, as it is in any non-joinder dispute, is whether
the party sought to be joined has a direct and substantial
interest
in the matter. The test is whether a party that is alleged to be a
necessary party, has a legal interest in the subject
matter, which
may be affected prejudicially by the judgment of the court in the
proceedings concerned”
[27] Dr Dlamini-Sukumane had resigned
long before the arbitration proceedings commenced before the third
respondent, and the post
for which the appellant had applied for was
thus vacant.
[28] Applying the test as set out in
Gordon’s
case in regard to the issue of non
-joinder
,
it is apparent that the court
a quo
erred in reviewing and
setting aside the third respondents award on the basis as articulated
in its judgment.
[29] As the
court a quo
did not
consider any of the other grounds raised by the university it remains
for this Court to consider whether the award of the
third respondent
should be set aside on such grounds as contended for by the
university.
[30] Counsel for the university argued
that on the evidence and material that were placed before the third
respondent no reasonable
decision maker could have come to the
conclusion that the appellant could have had a reasonable expectation
of being appointed
to the position of senior lecturer as advertised.
It was argued that the appellant is a foreign national. The appellant
would require
a work permit issued by the Department of Home Affairs
before he could take up any position with the university. Accordingly
the
appellant would have to comply with
s19(2)
of the
Immigration Act
13 of 2002
. That is to say the appellant would have had to obtain a
general work permit as the section provides as follows:-
“
A
general work permit may be issued by the Director-General to a
foreigner not falling within a category or class contemplated in
subsection (1) if the prospective employer –
(a)
satisfies the Director-General in the manner prescribed that despite
the diligent search he or she has been unable to employ
a person”
It was submitted that the appellant
could not have reasonably held the belief that there was no South
African citizen with an equivalent
qualification who could fill the
position. Therefore, subjectively, the appellant could not have had a
legitimate expectation of
being appointed to the position as
advertised.
[31] It was further argued that the
appellant, when he testified gave evidence to the effect that he and
the Head of the School
of Language and Communications, Dr Payle had
major differences. So much so, that when the appellant declined the
position at the
University of Witwatersrand he stated the following:
“
In
the light of this development I have to refuse the Wits offer. I do
this with great regret and even with a sense of insecurity
because I
have no guarantee UNIN. As I have explained to you, I would like to
continue at UNIN, if there was even a small chance
that I could be
retained there and now this chance though still small, seems very
possible.”
It was argued that this communication
reflected the appellants’ state of mind. In his own mind he had
no guarantees.
[32] It was further argued that for a
legitimate expectation to exist in the mind of the appellant, that
such an expectation must
have been created by someone with sufficient
authority acting for and on behalf of the university.
[33] The argument advanced by the
university that
s19(2)
of the
Immigration Act prevented
the appellant
from forming a legitimate expectation that he would be appointed to
the position of senior lecturer, in my view,
is not a factor which
could have prevented the appellant from holding a reasonable or
legitimate expectation that his contract
would be renewed. It is only
after a decision has been made to renew the appellant’s
contract that it can be said that the
provisions of
s9(2)
of the
Immigration Act can
be complied with. That is to say
s19(2)
comes
into effect only once the university had decided to re-employ the
appellant can it then be said that despite the diligence
search the
employer has been unable to employ a person in the Republic with
qualifications equivalent to those of the appellant.
[34] The Department of Home Affairs
had on previous occasions granted to the appellant a general work
permit. In the event of the
university renewing the appellant’s
contract of employment there is nothing to suggest that the
Department of Home Affairs
would not again have issued the appellant
with a general work permit.
[35] The onus is on an employee to
prove the existence of a reasonable or legitimate expectation. He or
she does so by placing evidence
before an arbitrator that there are
circumstances which justifies such an expectation. Such circumstances
could be for instance,
the previous regular renewals of his or her
contract of employment, provisions of the contract, the nature of the
business and
so forth. The aforesaid is not a closed list. It all
depends on the given circumstances and is a question of fact.
[36] It is common cause that Mr LD
Liebenberg, a Senior Manager in the Human Resources Department,
motivated for the extension of
the appellant’s current work
permit. Moreover Professor MN Mokgalong, the Acting Vice Chancellor
of the university supported
the application for the extension of the
appellant’s work permit. In the correspondence both Mr LD
Liebenberg and Professor
MN Mokgalong stated that the appellant’s
services were of importance to the university. Both Mr LD Liebenberg
and Professor
MN Mokgalong are senior officers in the administration
of the university. Both could act and did act on behalf of the
university.
Accordingly in my view both Mr Liebenberg and Professor
Mokgalong were persons of authority who could, through their conduct,
create
in the mind of the appellant that his employment contract
would be renewed.
[37]
It
is common cause that the appellant, prior to 2003 had developed the
two programs, CELS and MUST. These programs were unique and
were
offered in applied English language studies. He was, so to
speak the intellectual anchor in the
implementation of the two programs. At the time when the appellant
applied to be re-appointed
to his position the programs were ongoing
and were still being offered by the university.
[38] It is further common cause that
Dr Dlamini-Sukumane did not have the necessary qualifications to
implement and to teach the
two programs. This was underscored by her
resignation soon after taking up her appointment.
[39] Given the aforesaid circumstances
it is, in my view, reasonable for the appellant to have expected that
his contract with the
university would be renewed.
[40] The unfairness of the process in
not renewing the appellant’s contract is demonstrated by the
composition of the panel
that interviewed him. The chairman of the
interviewing panel was Professor Djolov. The other members were Dr
Nel, Dr Payle and
Professor Louw. Both Dr Payle and Professor Louw
had outwardly shown animosity towards the appellant. In fact
Professor Djolov
testified that if he had known of Dr Payle’s
and Professor Louw’s attitude towards the appellant he would
have objected
to the manner in which the panel was constituted.
Moreover, Dr Nel, in his evidence, indicated that he had gathered
from the manner
in which Dr Payle raised certain issues with the
appellant, that there was a problem between Dr Payle and the
appellant. Dr Nel
further conceded that Professor Louw should not
have been allowed to sit on the panel given her animosity towards the
appellant.
[41] The third respondent had before
him the letter written on the 27
th
November 2003 by Mr
Liebenberg to the Department of Home Affairs. The letter concluded by
stating that the appellant’s services
were indispensable to the
university and urged the Department to extend the appellant’s
work permit for another three years.
[42] It was common cause that the
appellant had established the two programs, CELS and MUST and had
himself, obtained money from
the Ford Foundation for its
implementation.
[43] The post that was advertised was
for the position that was then occupied by the appellant and
specifically called for someone
involved in academic development.
This was precisely what the appellant had been doing. The third
respondent, in the award acknowledged
the fact that whoever filled
the post had to have the necessary qualifications to deal with the
highly specialized programs which
the appellant had introduced.
[44] In the light of the aforesaid, in
my view, it cannot be said that the conclusion reached by the third
respondent was one that
a reasonable decision maker could not reach
2
.
That being so there is no basis for a court to interfere with the
award of the third respondent and the court
a
quo
ought to have dismissed
the university’s application to have the award reviewed and set
aside.
[45] In the result the following order
is made:
1. The appeal is upheld.
2. The order of the Labour Court is
set aside and is replaced with an order that the application for
review is dismissed with costs.
3. The first respondent is ordered to
pay the appellant’s cost of the appeal.
_____________________
Jappie JA
I agree:
Waglay DJP
I agree:
Hendricks AJA
DATE MATTER HEARD: 23 September 2010
DATE OF JUDGMENT: 13 May 2011
APPEARANCES
Appellant’s Counsel: Adv LA
GRANGE
Instructed by: Mendelow – Jacobs
Attorneys
First Respondent’s Counsel: Adv
Hulley
Instructed by: Hlatshwayo, Du Plessis,
Van der Merwe, Nkaiseng Attorneys
1
2008
(6) A 522 (SCA) per Mlambo JA at para [9].
2
Sidumo
& another v Rustenberg Platinum Mines Ltd & others
(2007
28ILJ 2405 (CC) para 110