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[2017] ZALAC 75
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Ekurhuleni West College v Education Labour Relations Council and Others (JA55/2016) [2017] ZALAC 75 (30 November 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA55/2016
In the matter between:
EKURHULENI
WEST
COLLEGE
Appellant
and
EDUCATION
LABOUR RELATIONS COUNCIL
First
Respondent
R
DE WET
N.O.
Second Respondent
SHIKWAMBANA, JERRITAH TINYIKO
Third Respondent
Heard
:
28
November 2017
Delivered:
30 November 2017
Summary:
The third respondent employee was employed on three consecutive
three-month fixed-term contracts.
The post in which she was employed
was advertised but she was not appointed into the position. Shortly
after she was asked to complete
an application for maternity leave,
the employee was notified that her third fixed-term contract would
not be renewed. She referred
an unfair dismissal dispute to the
Education Labour Relations Council (ELRC) on the basis that she had
been dismissed for reason
of her pregnancy and, further, that she had
a reasonable expectation that her contract would be renewed. The
arbitrator found that
although she was not dismissed for reason of
her pregnancy, the employee held a reasonable expectation that her
contract would
be renewed and she was awarded three months’
compensation for unfair dismissal. The Labour Court dismissed the
employer’s
review application finding that the decision of the
arbitrator fell within the ambit of reasonableness required. On
appeal: judgment
of the Labour Court upheld. Appeal dismissed with
costs.
Coram: Musi and Coppin JJA and
Savage AJA
Judgment
SAVAGE AJA
Introduction
[1]
This
appeal, with the leave of the Labour Court (Gush J), is against the
judgment of that Court in terms of which the appellant’s
review
application was dismissed.
[2]
The
third respondent, Ms Tinyiko Jerritah Shikwambana (the employee),
applied for a renewable temporary fixed term contract post
as
lecturer advertised by the appellant, the Ekurhuleni West College.
She was employed on a first three-month fixed term contract,
which
commenced on 18 July 2012 and terminated on 30 September 2012,
earning R14 416.67 per month. During July 2012, the appellant
advertised the position on a permanent basis, with the closing date
for applications being 3 August 2012. The employee was not
appointed
into the position. On 27 September 2012, the parties entered into a
second fixed term contract, which commenced on 1
October 2012 and
terminated on 31 December 2012. Thereafter, on 4 December 2012, a
third fixed term contract was entered into between
the parties, which
commenced on 1 January 2013 and terminated on 31 March 2013.
[3]
In
February 2013, Ms Evelyn Mgwexe, the appellant’s human
resources manager, and the employee’s head of department,
Mr
Bernard Nkalanga, advised the employee, who was pregnant, to apply
for maternity leave. When she approached Ms Mgwexe during
March 2013
with the required medical certificate, the employee was told to
return at another time since the application was not
urgent. In
mid-March 2013, Mr Nkalanga asked the employee why he had not
received her maternity leave forms as he needed to find
a replacement
for her during the period of her maternity leave. The employee
returned to Ms Mgwexe and was told that while she
should still sign
the maternity leave application form, “
there’s
a catch…(t)he post you are now occupying has been occupied by
somebody else but we’ll move you to college
counsel post
”,
which would not affect her maternity benefits.
[4]
On 20
March 2013, which was the employee’s last working day before
the end of the first term, the appellant gave her notice
that her
third fixed term contract would expire on 31 March 2013.
Arbitration award
[5]
Aggrieved
with the appellant’s failure to renew her fixed term contract,
the employee referred an unfair dismissal dispute
to the first
respondent, the Education Labour Relations Council (ELRC). In her
dispute referral form, the employee alleged both
that her pregnancy
was the reason for the appellant’s failure to renew her fixed
term contract and that the termination of
her contract constituted a
dismissal in terms of s186(1) of the Labour Relations Act 66 of 1995
(the LRA) in that she held a reasonable
expectation that her
fixed-term contract would be renewed.
[6]
The
employee testified at the arbitration hearing and, on subpoena,
called Ms Mgwexe and Mr Nkalanga to testify in support of her
case.
The appellant adduced no oral evidence at arbitration. The employee’s
testimony was that Ms Mgwexe told her that the
appellant could not
renew her fixed term contract “
because
you are pregnant and during maternity leave the students will suffer
because they won’t have a lecturer
”.
[7]
Ms
Mgwexe testified that she was informed by the campus manager that the
contracts of all temporary employees would not be renewed
after March
2013 and that the employees affected had been informed of this in a
public meeting. Ms Mgwexe was not aware that the
employee had applied
for a permanent post and denied offering to submit the employee’s
application for her in Germiston.
She stated further that she did not
receive an application for maternity leave from the employee.
[8]
Mr
Nkalanga testified that, although he requested the employee to apply
for maternity leave, it came as no surprise to him that
her contract
was not renewed given that the names of the persons appointed
permanently with effect from 8 April 2013 to the posts
advertised had
been circulated in late February or early March 2013.
[9]
The
arbitrator found both Ms Mgwexe and Mr Nkalanga to be unreliable
witnesses whose evidence contradicted each other in several
respects.
While the arbitrator found that the employee had not been dismissed
for reason of her pregnancy, he found that the employee
had shown
that she had held a reasonable expectation that her contract would be
renewed. This was so in that the appellant had
engaged her on
maternity leave arrangements which would have commenced after the
expiry of her third contract; and the appellant
had a practice of
providing in excess of a month’s notice to employees of the
expiry of a fixed term contract. For these
reasons, it was found that
the employee had been dismissed without a valid reason and without
compliance with a fair process. Yet,
given that the employee was
employed on a three-month contract and her post had since been
filled, compensation equivalent to three
months, being R43 250,01,
being the period of a further contract “
as
per the reasonable expectation
”
was found to be just and equitable.
Judgment of the Labour Court
[10]
Dissatisfied
with the arbitration award, the appellant sought the review of the
arbitration award by the Labour Court. The appellant
contended on
review that the arbitrator had committed a gross irregularity in the
conduct of proceedings and that the outcome reached
was not one that
could reasonably be reached on the evidence.
[11]
The
Labour Court in its judgment found that it was –
‘
completely
inconceivable that the [employee] would not have had a reasonable
expectation that her contract would be renewed in light
of her
evidence, corroborated by the evidence of her two witnesses that she
was requested to obtain a doctor’s certificate
regarding her
pregnancy and was to complete the maternity leave forms
.’
[12]
The
Court found the answers to both review grounds to be clear:
‘
Not
only did the second respondent deal with the matter appropriately and
afford the parties a full opportunity to have their say,
the second
respondent identified and understood the dispute he was required to
arbitrate and dealt with the substantial merits
of the dispute. It is
also abundantly clear from the award that the second respondent’s
decision was eminently a decision
that another decision-maker could
reasonably have arrived at’
.
[13]
The
review application was accordingly dismissed, with no order as to
costs, given the absence of the third respondent’s attorney
at
the hearing of the matter.
Grounds of appeal
[14]
On
appeal, the appellant contended that the arbitrator had committed a
gross irregularity in the conduct of the arbitration proceedings
in
the manner in which he had exercised his power and that the
arbitration award was unreasonable. Since the contract had expired
through the effluxion of time, the employee could not have held a
reasonable expectation under s186(1)(b) of the Labour Relations
Act
66 of 1995 (the LRA) that her contract would be renewed. The employee
was aware that the post had been advertised and that
it was
thereafter filled by a suitable candidate. Given that Mr Nkalanga was
not involved with appointments and was only involved
with ensuring
the necessary paperwork was completed for maternity leave should the
fixed term contract be renewed, his conduct
could not have created a
reasonable expectation that renewal would occur. The employee was
aware that the position was to be filled
on a permanent basis from 1
April 2013 and she was not appointed into the position, despite
apparently applying for the post. Consequently,
the appellant sought
that the appeal be upheld.
[15]
It
was contended for the employee that a reasonable expectation that her
fixed-term contract would be renewed was created by Ms
Mgwexe and Mr
Nkalanga when they invited her in January 2013 and February 2013 to
apply for maternity leave. Furthermore, since
the practice was to
give one month’s notice of expiry of a fixed term contract, the
short notice given to the employee was
unreasonable and unfair. The
arbitration award was reasonable in the circumstances and the Labour
Court correctly refused to set
aside the award on review. For these
reasons, the employee sought that the appeal be dismissed with costs.
Evaluation
[16]
Section
186(1)(b) provides that:
‘
(
1)
Dismissal means that-
(a)
...
(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.’
[17]
The
employee bore the
onus
to establish that she held a reasonable expectation that her
fixed-term contract would be renewed. The facts which she placed
before the arbitrator to support her contention that a reasonable
expectation existed were that, while she was aware that a permanent
appointment into the post may be imminent, she was asked, by both Ms
Mgwexe and Mr Nkalanga, to apply for maternity leave; that
she
understood from their conduct that she was to be granted such leave;
and that she was only given notice on the last day of
term that her
contract was to expire at the end of the month.
[18]
The
arbitrator was required to determine whether on the facts before him,
objectively considered, it had been established that the
employee
held a reasonable expectation that her contract would be renewed. The
arbitrator found on the evidence before him that
the requirements
of
s186(1)(b) had been satisfied and that the employee had been
dismissed. It was then for the appellant to establish that the
dismissal was both procedurally and substantively fair.
[1]
[19]
The
appellant elected to lead no evidence at the arbitration hearing. The
result was that the arbitrator had before him the testimonies
of
three witnesses, all of whom confirmed that a representation had been
made to the employee that she should apply for maternity
leave when
they were aware that the employee was employed on a temporary
fixed-term contract which was to expire shortly. Given
this
representation, the finding that the employee had discharged the
onus
to prove that she held a reasonable expectation that her fixed term
contract would be renewed, was a decision which a reasonable
commissioner on the material before him could have reached. It is
reasonable to conclude that the employee, who had been told to
apply
for four months’ maternity leave, held a reasonable expectation
that her contract would, as a result, be renewed and
that when she
received notice of the expiry of her contract on her last day of work
before the end of the first term, this would
have come as a surprise
to her.
[20]
The
Labour Court correctly determined that the arbitrator had committed
no irregularity in the conduct of the arbitration proceedings
and
that the arbitration award fell within the ambit of reasonableness
required. There is consequently no reason for this Court
to interfere
with the order of the Court
a
quo
and the appeal in the circumstances falls to be dismissed.
[21]
Having
regard to the issue of costs, it is entirely unclear why the
appellant elected to pursue an appeal in this matter when it
had
adopted a hands-off approach in calling no witnesses to testify at
the arbitration proceedings, and when it was not in dispute
that two
of its senior employees had advised the employee that she was
entitled to apply for maternity leave in spite of the fact
that the
expiry of her fixed term contract was imminent. These facts clearly
supported a finding that the appellant had created
a reasonable
expectation that the employee’s fixed-term contract would be
renewed. It follows that there is no reason in
law or fairness why
costs should not follow the result.
Order
[22]
In
the result, the following order is made:
1.
The
appeal is dismissed with costs.
________________
SAVAGE AJA
Musi JA and Coppin JA agree.
APPEARANCES:
FOR
THE APPELLANT:
Ms K A Wilson
Instructed by
Motalane Kgariya Inc.
FOR
THE RESPONDENTS: Mr
Goldberg of Goldberg Attorneys
[1]
SA
Rugby Players’ Association and Others v SA Rugby (Pty) Ltd and
Others
[2008]
9 BLLR 845 (LAC); (2008) 29 ILJ 2218 (LAC)
at
para 44.