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[2019] ZALAC 53
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Department of Agriculture, Forestry and Fisheries v Baron and Others (CA6/18) [2019] ZALAC 53; (2019) 40 ILJ 2290 (LAC); [2019] 12 BLLR 1289 (LAC) (23 July 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: CA6/18
In
the matter between:
DEPARTMENT
OF AGRICULTURE, FORESTRY
AND
FISHERIES
Appellant
and
DENVOR
CRAIG BARON
First
Respondent
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL Second
Respondent
HILARY
MOFSOWITZ
N.O. Third
Respondent
Heard: 14
March 2019
Delivered: 23
July 2019
Summary:
Review of arbitration award –
fixed
term contracts renewed successively-position advertised as three year
contract with help of incumbent- incumbent dismissed
before decision
made on appointment-incumbent’s evidence that he was promised
position and had reasonable expectation to
be appointed not disputed
at arbitration-arbitrator’s award that incumbent had such
expectation and that his dismissal was
substantively unfair
confirmed-part of award only awarding compensation set aside and
replaced with reinstatement order- On appeal
decision of Labour Court
confirmed and appeal dismissed.
Coram:
Coppin JA, Murphy
et
Savage AJJA
JUDGMENT
COPPIN
JA
[1]
This is an appeal against the whole judgment of the Labour Court
(Moshoana J) in terms
of which it reviewed and set aside part of an
arbitration award of the third respondent (“the arbitrator”),
acting
under the auspices of the second respondent (“the
Bargaining Council”). The Labour Court substituted that part of
the
award requiring the appellant (“the Department”) to
pay the first respondent (“Mr Baron”) compensation in
the
amount of R 482, 451 – 00, with an order,
inter alia
,
requiring the Department to reinstate Mr Baron “without loss of
benefits”. The Labour Court also refused to condone
the
Department’s late filing of a cross-review, had dismissed the
cross-review and had ordered the Department to pay the
costs. Leave
to appeal to this Court was granted on petition.
[2]
The appeal essentially turns on the following: firstly, whether the
Labour Court was
correct in refusing to condone the late filing of
the cross-review and in dismissing it; secondly, whether the Labour
Court was
correct in concluding that the arbitrator had reasonably
found that Mr Baron’s dismissal was both procedurally and
substantively
unfair and that it was a dismissal as contemplated in
section 186(1)(b)(i) of the Labour Relations Act
[1]
(“the LRA”); and, thirdly, whether the Labour Court was
correct in substituting the arbitrator’s award of compensation
with one of reinstatement.
Background
[3]
The following background facts are common cause, or not really in
issue. Mr Baron
was appointed initially on 15 July 2013 in terms of a
written contract for a fixed-term of 12 months, expiring on 14 July
2014,
as a fishing rights coordinator/programme manager for the
Department’s Working for Fisheries Programme. This fixed-term
contract
was renewed a number of times for varying periods of
duration.
[4]
In August 2014, upon expiry of a seemingly oral/tacit contact at the
end of August
2014, Mr Baron was appointed in the same capacity, in
writing, for a further period, i.e. from 1 September 2014 to 30
November
2014. In that period Mr Baron established the Working for
Fisheries Programme Unit (“the Unit”). And before expiry
of that contract, Mr Baron was appointed, in writing, for another
three-month period, i.e. from 1 December 2014 to 28 February 2015.
[5]
Within the period of duration of the last mentioned contract, the
position occupied
by Mr Baron, i.e., that of programme manager, was
advertised with his knowledge. According to the advertisement, the
position was
for a three-year contract with an all-inclusive
remuneration package of R819126 – 00 per year. Mr Baron had
been made aware
that this was a necessary step towards formalising
the Unit. He applied for the position having been asked to do so by
Ms Middleton
and Mr Mannya, who at the time were, respectively, the
Chief Director: Fisheries Operations Support and Deputy
Director-General:
Fisheries, in the Department. Other related
positions in the Unit were also advertised, including that of Deputy
Programme-Manager:
Working for Fisheries Programme.
[6]
According to Mr Baron’s undisputed testimony at the
arbitration, he had been
assured by both Ms Middleton and Mr Mannya
that he was the preferred candidate for the position of programme
manager. With their
encouragement he participated in formulating the
requirements for the post. They were essentially tailored to suit the
qualifications
and experience of those already employed in the Unit,
including himself.
[7]
On 17 February 2015, Mr Baron was interviewed for the post of
programme manager and
on 19 and 20 March 2015 psychometric
evaluations were conducted. On 17 April 2015, Mr Mannya requested Mr
Baron to urgently clear
a judgement from his credit record, which Mr
Baron duly attended to and confirmation of such clearance was sent to
Mr Mannya on
30 May 2015.
[8]
Of significance was Mr Baron’s interim employment status. The
three-month period
of his last fixed-term employment contract expired
on 28 February 2015. According to Mr Baron’s uncontested
testimony at
the arbitration, his employment in the Unit of the
Department was orally or tacitly extended by Ms Middleton and Mr
Mannya beyond
that date until he was to be appointed in terms of the
three-year contract that he had applied for.
[9]
It is however common cause that on 24 July 2015, before finalisation
of the three-year
contract appointment, Ms Middleton delivered a
letter to Mr Baron requesting him to vacate the department’s
offices on the
close of that day. The letter was dated 24 July 2015
and signed by Ms Middleton. It is addressed to Mr Baron and refers to
him
as “Programme Manager: Working for Fisheries Programme”.
The letter states the following:
‘
Dear
Mr Baron
Expiration
of the contract period for your appointment as the Programme Manager:
Working for Fisheries Programme
.
As
you are aware, your contract period as the Programme Manager: Working
for Fisheries Programme expired on 28 February 2015. This
was then
extended via adding an additional deliverable to the Jaymat Business
Plan to include the administrative support of the
Working for
Fisheries personnel, including yourself, based at the DAFF offices.
This extension of the Jaymat brief was valid from
1 March 2015 to the
end of June 2015. This extension has therefore expired and
unfortunately the appointment process of the Programme
Manager:
Working for Fisheries Programme has not yet been concluded.
Given
that there is not a valid contract in place between yourself and the
Working for Fisheries Programme, I must therefore request
that you
vacate the DAFF offices with effect from the close of day on Friday,
24 July 2015.
Yours
sincerely
Sue
Middleton
Chief
Director: Fisheries Operations Support
Date:
24/7/2015’
[10]
According to Mr Baron’s uncontested evidence at the
arbitration, Ms Middleton brought this letter
to him at his office,
and said to him that she did not know what was going on. Just before
that Ms Middleton had a meeting with
the Chief Director of Human
Resources in the Department (Fisheries) and she had asked Mr Baron
for a copy of his contract. When
he later attended at her office she
informed him that she had been instructed to terminate his services.
She also showed him a
submission made to the Director-General of the
Department concerning his appointment for the three -year contract.
In terms of
the submission, his appointment had been approved by both
Ms Middleton and Mr Mannya, and the third person who had been on the
panel that interviewed him, namely a Mr Mtoba, Chief Director of
Monitoring, Control and Surveillance, but the new Deputy
Director-General,
Ms Ndudane, had not recommended his appointment. It
also appeared from the submission that Ms Ndudane had complained that
he was
illegally in the Department and had access to confidential
documents; that there were no documents in existence relating to Mr
Baron’s performance; and that she also referred to an
investigation report that suggested that Mr Baron was being
investigated
by the Hawks in respect of a project in the Northern
Cape in 2009. According to Mr Baron’s uncontested testimony,
there was
never such an investigation and that had been confirmed by
Mr Mannya, who preceded Ms Ndudane as Deputy Director-General.
[11]
According to Mr Baron’s testimony, he complied with the request
in the termination letter and
left the Department’s offices on
the afternoon of 24 July 2015, after “handing over” to
his assistant, in order
to ensure continuity in the programme of the
Unit. Noteworthy is also the fact that Mr Baron gave unchallenged
evidence, that his
assistant, who had been employed on temporary
contracts similar to his, continued in his employment and was not
asked to leave.
Referral
of the dispute
[12]
Following the termination of his employment with the Department on 24
July 2015, and on or about 24
August 2015, Mr Baron referred an
unfair dismissal dispute to the Bargaining Council for conciliation.
In his summary of the dispute
on the referral forms, in addition to
relating the history of his appointment with the Department, he
mentions that he had also
been informed that the appointment process
for the Programme Manager: Working for Fisheries Programme had not
yet been concluded.
In response to a question on the referral form as
to what outcome he required, Mr Baron stated: “to be appointed
as the Programme
Manager: Working for Fisheries
Programme/compensation”. He also indicated elsewhere in the
form that he felt that his dismissal
was substantially unfair because
there were no genuine reasons for his dismissal.
[13]
On 2 November 2015, a panellist of the Bargaining Council certified
that the dispute that had been
referred “concerning an alleged
unfair labour practice”, remained unresolved. Following this
certification, Mr Baron
requested that the matter be referred to
arbitration. In the referral form, Mr Baron described (in manuscript)
the issue/s in dispute
as follows: “Unfair Labour Practice. I
(the party) was working at DAFF as a director on contract, which was
renewed a few
times. I applied for the same post for a longer term
and was made to believe that I would be appointed if I removed a
judgement
from my name. I was not appointed after I complied”.
Also of importance, Mr Baron proposes the following relief or
outcome:
“to be appointed in the position of director and to be
compensated for the loss of earnings”.
[14]
When the matter went to arbitration for the first time, Mr Baron
alleged that he had referred both
an unfair dismissal dispute and an
unfair labour practice dispute to the bargaining council on 25 August
2015 by means of one referral
form. The department’s
representative objected to these disputes being arbitrated at the
same time because the certificate
of the outcome of the conciliation
indicated that only an unfair labour practice dispute had been
conciliated. Mr Baron’s
representative, seemingly, argued that
both disputes could be arbitrated at the same time because the
certificate was not binding
on anyone. The panellist seized with the
matter at the time concluded (correctly in my view) that the dispute
that Mr Baron had
referred was an unfair dismissal dispute and not an
unfair labour practice dispute, and that the certificate had
erroneously referred
to the latter as having been conciliated,
whereas the former had been referred and had been conciliated. The
panellist, accordingly,
ruled that the Bargaining Council did not
have jurisdiction to arbitrate the alleged unfair labour practice
dispute, as it had
not been referred to conciliation, and that the
unfair dismissal dispute was to be set down for arbitration. This
binding ruling
was not reviewed.
The
Arbitration
[15]
Following preliminary hearings before the arbitrator, the matter was
finally scheduled for hearing
on 5 September 2016. The issue to be
decided was whether Mr Baron was dismissed; and if so, whether his
dismissal was procedurally
and substantively fair. The arbitrator
took this to mean that she had to decide whether the Department had
created a reasonable
expectation that Mr Baron’s fixed-term
contract would be renewed for a further term of three years.
[16]
At the arbitration, Mr Baron testified and called Mr Charles Titus,
who took –over his position
at the Unit in an acting capacity,
but the Department called no witnesses. According to the arbitrator,
the Department sought to
advance its case through written
submissions, being of the view that it was not necessary to lead oral
evidence as the relevant
common cause facts (according to the
Department) did not support Mr Baron’s case. The Department’s
case was that in
July 2014, Mr Baron had become aware that his post
would be advertised and that he would be required to participate in a
competitive
process; and he conceded that it was open to anyone to
apply. The fact that he accepted and participated in the public
appointment
process dispelled any subjective or objective perception
and he could, therefore, not have had a reasonable expectation of the
renewal of his contract for three years. Had Mr Baron been successful
in applying for the advertised position, a new contract for
a
three-year period would have been entered into; and, lastly, that Mr
Baron’s expectation of being appointed into the advertised
post
relates to the unfair labour practice dispute, which was not before
the arbitrator.
[17]
In her award the arbitrator reasons as follows:
‘
14.
The test to be applied in the current case is whether the officials
in authority at the relevant time had created a reasonable
expectation in the mind of the employee. This is an objective
perception to the extent that any other person in the same position
would have had the same expectation. No evidence was led to challenge
the applicant’s evidence and consequently I have accepted
it.
The respondent’s case was mainly that the applicant could not
have held a reasonable expectation of renewal of contract
on account
of him participating in a competitive recruitment process. The
respondent argued that if it is the applicant’s
contention that
the outcome of the process was predetermined, then the entire process
was a “shame”. The applicant
placed the recruitment
process and his participation in context. The advertisement was
tailored to suit him; he was instrumental
in drafting the
advertisement; he was told prior to participating in the recruitment
process that he would remain the programme
manager for a period of
three years; he was involved in strategic planning (with Middleton)
for 2016 to 2017; it was imperative
for the functions performed by
the applicant and his team to continue in the formally established
Unit. The applicant’s evidence
that he was told to apply as “a
means to an end” was not challenged by the respondent. After
the interviews were conducted
Mannya told the applicant to clear the
judgement on his credit profile in order for his new contract to be
finalized. Middleton
revealed to the applicant that he was the
preferred candidate. Middleton informed the applicant that she and
the other interview
panellists were unanimous about the applicant
remaining the programme manager. The new deputy director-general
Ndudane (who took
over the position from Mannya) instructed Middleton
to terminate applicant’s employment. It is safe to assume that
the respondent
did not find a candidate more suitable than the
applicant as it was undisputed that Titus (the applicants
subordinate) was appointed
to act in the position of programme
manager. Both the applicant and Titus testified that there was no
difference between the position
held by the applicant and the
advertised position of programme manager other than its duration.
This was not materially disputed.
15.
Based on the evidence presented at arbitration, I find that the
applicant’s expectation of renewal was reasonable in the
circumstances. He has satisfied this test on an objective basis. The
respondent’s submission is simply that I cannot come
to this
conclusion as it would mean that the applicant’s participation
in the recruitment process would then have been a
“shame”.
I agree with the applicant that this “shame” was not one
created by him. The “shame”
was created by the
respondent. The circumstances of the current case are similar to the
circumstances of the case of
Mcinness
versus Technikon Natal
(2000)
21 ILJ 1138 (LC)
...
The two officials held the necessary and requisite authority at the
time regardless that the guarantees were not in writing.
I have
accepted the evidence of the applicant that it was the respondent’s
intention to retain him (and his team) in the
division after its
official establishment. It is reasonable to conclude that any other
person in the same position would have had
the same expectation. The
fact that the respondent does not appear to have appointed anyone
into the position seems to support
the applicant’s contention
that it was not possible that any candidate could be more suitable
than him. This contention is
supported by the fact that the interview
panellists unanimously recommended him as programme manager. At all
material times it
was agreed that the applicant and East team will
continue to be employed by the Working for Fisheries Programme as it
was imperative
for the functions performed by these individuals to
continue. I have concluded that the applicant held the same position
as the
one that he reasonably expected to be appointed into and that
it would have amounted to a renewal of the same or similar contract
of employment
.’
[18]
The arbitrator then went on to conclude that based on those findings,
Mr Baron had discharged the
onus
of showing that he was
dismissed as contemplated in terms of section 186(1)(b)(i) of the
LRA, and that the Department, which adduced
no evidence, had failed
to show that Mr Baron’s dismissal was substantively and
procedurally fair.
[19]
Notwithstanding those conclusions, the arbitrator found that it was
impractical to reinstate Mr Baron
for a further three years as he had
sought because by then more than three years had passed since his
dismissal. The arbitrator
also found that since Mr Baron had placed
no evidence before her regarding the practicality of reinstating him,
an award of compensation
was the most appropriate in the
circumstances. She determined this compensation to be equivalent to
the amount Mr Baron had earned
over a period of six months (i.e. R
80408 – 50×6) giving a total of R 482 451 – 00. The
arbitrator ordered the
Department to pay Mr Baron this amount by no
later than 30 November 2016.The award was handed down on 11 October
2016.
Proceedings
in the Labour Court
[20]
On 30 November 2016, Mr Baron brought an application in the Labour
Court to review and set aside that
part of the arbitrator’s
award ordering compensation instead of reinstatement, and sought to
have it substituted with an
order that he be reinstated
retrospectively to the position he would have held under the
three-year contract. In the application,
he,
inter alia
,
complains about the inadequacy of the compensation, contending,
essentially, that compensation should have been the equivalent
of
what he would have earned over a three-year period and not merely for
six months.
[21]
The Department opposed the application for review by notice filed on
8 December 2016 and on 9 January
2017 also brought a
counter-application to review the award, incorporating a condonation
application since the counter- review
was filed two weeks out of
time. The Department sought to review and set aside the arbitrator’s
award and to have it substituted
with an award dismissing Mr Baron’s
claims for reinstatement and compensation based on his alleged unfair
dismissal. Mr Baron
opposed the Department’s Counter-review,
including the condonation. The essence of the case made by the
Department in the
counter-application (also referred to as “the
cross-review) was that the arbitrator had erred in finding that Mr
Baron had
established a reasonable and legitimate expectation that
his fixed-term contract would be extended or renewed and also erred
in
treating the three-year position as a renewal and extension of Mr
Baron’s previous fixed-term contracts. In this regard, the
Department submitted that there were differences - unlike with the
previous renewals or extensions, the three-year post was advertised
and was subject to a competitive application process in which Mr
Baron willingly and voluntarily participated; that there were
no
guarantees that he would be appointed and that, in any event, the
arbitrator had ignored specific provisions in the previous
contracts
applying to Mr Baron’s appointment that clearly precluded him
from having any reasonable expectation of their extension
or renewal.
[22]
It is common cause that on the same day the Department brought its
cross-review, that is on 9 January
2017, it filed an answering
affidavit to Mr Baron’s review application. On 10 January, Mr
Baron filed a notice indicating
his intention to oppose the
Department’s cross-review. On 27 January 2017, Mr Baron filed
an affidavit supplementing his
founding affidavit in the review
application and on 21 February 2017 the Department, in response,
filed a supplementary opposing
affidavit in Mr Baron’s review
application. On 9 March, Mr Baron filed an answering affidavit to the
Department’s cross-review
and in response the Department filed
its replying affidavit in that application on 26 March 2017.
[23]
The Labour Court dealt with the review before it considered the
cross-review. In respect of the former,
it concluded that the
arbitrator had only erred in not ordering Mr Baron’s
reinstatement. According to the Labour Court,
the arbitrator had
failed to consider the provisions of the law, including section 193
(2) of the LRA and that her reasons for
not granting reinstatement
were “speculative” and were arrived at without any
evidence. In respect of the cross-review,
the Labour Court held that
there was no point in granting condonation for the late filing of the
cross-review, because the prospects
of that application succeeding
were weak as the Department had failed to lead evidence at the
arbitration proceedings. According
to the Labour Court, Mr Baron’s
evidence could in those circumstances not be rejected and on his
evidence a reasonable expectation
had been established. Accordingly,
the review was to succeed and the cross-review was to fail. The
Labour Court then went on to
make an order setting aside the
compensation order of the arbitrator and replacing it with an order
that Mr Baron be reinstated
to his position without a loss of
benefits. In addition to refusing condonation and dismissing the
cross-review, the Labour Court
ordered the Department to pay the
costs. The Department was granted leave to appeal the Labour Court’s
order after it petitioned
the Judge President of this Court.
The
Appeal
[24]
The Department’s counsel argued that the Labour Court had erred
in refusing to condone the late
filing of its cross-review and in
that regard, in particular, argued that the Labour Court had failed
to consider the prospects
of success of that review which were dealt
with in in the supporting affidavit to that application and despite
having before it
all the papers filed in the review and cross-review
applications. The Department made new submissions and persisted with
the submissions
made in the cross-review, which were, in brief, that
Mr Baron could not have had a reasonable expectation that his
fixed-term contract
would be extended for three years, and that the
arbitrator had erred in concluding accordingly. The detail of the
Department’s
submissions is considered under the subsequent
headings in this judgment.
Discussion
[25]
I shall now consider the issue of condonation first and then deal
with the other issues arising from
this appeal.
[26]
The Department chose not to file a separate substantive condonation
application, but instead, dealt
with the issue of condonation in the
affidavit filed in support of the cross-review. In the final
paragraphs of that document,
the Department deals with the issue of
condonation. It does not specifically aver that the cross-review had
reasonable prospects
of success, instead, the deponent to that
affidavit, Mr Arthur Frans, states: “it is respectfully
submitted that it is in
the interest of justice to condone the late
filing of the cross-review. The matter is of considerable importance
to employment
in the Public Service and will have a far reaching
effect in the Public Service… Accordingly, I humbly pray that
I can good
grounds exist for the grant of condonation herein”.
[27]
In that affidavit, Mr Frans stated essentially: Firstly, that the
arbitrator ignored stipulations in
the advertisement for the post to
the effect that the successful candidate would be appointed for a
probationary period of 12 months
and that the Department reserves the
right to make appointments to the advertised post; Secondly, that the
arbitrator had erred
in not taking into account Ms Ndudane’s
authority concerning the appointment and in particular had failed to
give consideration
to the fact that if Mr Mannya left the position
before finalisation of the appointment, the new DDG had a discretion
concerning
the appointment, and further that Ms Middleton did not
have authority to make an appointment and was merely an interview
panellist;
Thirdly, that the arbitrator failed to find that the
reasons provided by Ms Ndudane for not recommending Mr Baron’s
appointment
were valid and justified; Fourthly, that the arbitrator
had failed to properly consider the previous fixed-term contracts
entered
into with Mr Baron and in particular the “no
expectation” clauses therein; Fifthly, that the arbitrator had
failed
to have regard to the appointment letters relating to the said
contracts which stipulated that the appointment was subject to
statutory
approvals and that no assurance of an extension/renewal can
be given; and lastly, that the arbitrator failed to consider that Mr
Baron’s employment was not previously renewed in respect of an
advertised post, and that by applying for an advertised post,
Mr
Baron had subjected himself to a competitive appointment process
where no guarantees existed.
[28]
In his answering affidavit to the cross-review, Mr Baron takes issue
with all of Mr Frans’ contrary
contentions. He not only deals
with the issue of the condonation and asks that it be refused, but
also deals with the merits of
the cross-review. Mr Baron mentions,
inter alia
, that the Department was attempting to present a
new case in the cross-review, which was not presented before the
arbitrator. He
mentions, for example, that it was for the first time
that the Department contended that Ms Ndudane had valid reasons for
not recommending
his appointment, and that it was also for the first
time that the Department relied on actual recommendation. At the
arbitration,
the Department resisted Mr Baron’s efforts to have
the document disclosed, contending,
inter-alia
, that it was
only relevant to the unfair labour practice dispute, and by
abandoning questioning relating to the document. Mr Baron
requested
that all the new evidence be struck out.
[29]
In addition, Mr Baron denied that the authority of Mr Mannya and that
of Ms Middleton had been an issue
at the arbitration, and averred
that no evidence had been placed before the arbitrator contesting
their authority. He also points
out that, at the time the
undertakings of his employment in the advertised position were made,
Ms Ndudane was not DDG and that
she only got appointed when the
process relating to the advertised post was in its final stage. He
also averred that the “no
expectation” and related
clauses in the previous contracts, now being relied upon by the
Department, were never an issue
before the arbitrator and that, in
any event, their wording did not suffice to exclude the expectation
of a renewal.
[30]
In its replying affidavit in the cross-review, Mr Frans, on behalf of
the Department concedes that
the recommendation was not before the
arbitrator, but, in essence, maintains that the recommendation was
dealt with in the course
of Mr Baron’s evidence, both in chief
and even when he was cross-examined and that the Department’s
reliance on the
recommendation at this stage of the cross-review was
therefore not prejudicial to Mr Baron. As far as the grounds of
review were
concerned, Mr Frans contended in reply that the grounds
relied upon by the Department bear a direct relationship to the
analysis
of the evidence and argument by the arbitrator in the award,
and accordingly, denied that the Department was attempting to adduce
new evidence, or to introduce “a new cause of action”.
[31]
Mr Baron’s review application essentially only dealt with the
issues of compensation and reinstatement,
and he contended therein,
inter alia
, that the arbitrator had erred in not reinstating
him. Mr Frans, who also deposed to the Department’s answering
affidavit
in that review application, denies that the arbitrator’s
analysis of the evidence and findings were factually correct, but
avers that in the event of the court finding that the arbitrator’s
award was reasonable on the merits, the Department agreed
with the
arbitrator that reinstatement was inappropriate in the circumstances.
He accepts that Mr Baron’s contract of employment
was
terminated, but states that “the dismissal arose out of the
non-renewal of his-fixed term contract” and further
“[that]
his dispute concerned his non – appointment by the
Director-General”. Mr Frans essentially further avers
that Mr
Baron was not appointed to the three-year contract position and would
not have been so appointed contrary to the Director-General’s
and Deputy Director-General’s decision not to appoint, and that
he would not have commenced his employment under a renewed
contract,
since he was not appointed by those with authority to do so.
[32]
That was essentially what was before the Labour Court. However,
before us completely new points were
argued on behalf of the
Department, such as the following: that the reinstatement order had
far-reaching implications “for
the legality of the Department’s
employment and recruitment decisions”. The essence of the
submissions in that regard
was that Mr Baron’s employment on
the basis of “an alleged verbal promise from an official of the
Department”
was not lawful, because it was not in terms of the
Public Service Act
[2]
and “did
not enjoy the attribute of lawfulness”. According to this
argument, Mr Baron should not have been found to
have had a
reasonable expectation and to have been reinstated, because courts do
not enforce unlawful employment contracts. In
effect, it was argued
that reliance on an oral agreement to be an employee in the Public
Service would be contrary to the Public
Service Act, and therefore,
not reasonable or unlawful.
[33]
Submissions were also made on behalf of the Department then went on
to deal with, and elaborate on
other points, which were either
completely new, or related to the grounds relied upon by the
Department in its cross-review, which
had not been raised as issues
in the arbitration. In addition to relying on “no variation”
clauses and “sole
memorial” clauses in the contract of 15
July 2013 and the contract of 1 December 2014, a submission was made
that Mr Baron
was “not dismissed”, and in that regard
facts were relied upon that was not evidence before the arbitrator.
It was
also submitted that the dispute was not about an unfair
dismissal, something which was also not an issue at the arbitration;
and
further, that Mr Baron had not sought to review the decision not
to accept the recommendation of the interview panel and that that
decision stood until it was set aside, this despite the evidence at
the arbitration that the appointment had not been finalised,
and
despite this not having been an issue before the arbitrator. There
was also a submission that Mr Baron was not employed by
the
Department, despite this never having been an issue before the
arbitrator, or in the Labour Court.
[34]
In any event, these arguments made on behalf of the Department before
us lack merit. We were not referred
to any specific provision in the
Public Service Act which outlawed temporary oral contracts, or even
the oral extension of a written
contract. I am not aware of such a
provision. Section 8 of that Act seems to accept the reality of
temporary contracts. The reference
to section 197(2) of the
Constitution
[3]
is also of no
assistance to the Department in that regard, because it merely
provides that the terms and conditions of employment
in the Public
Service must be regulated by national legislation. The Department not
only did not invoke the “non-expectation”
clauses and
other “no variation” and “sole memorial”
clauses, in Mr Baron’s previous contracts, in
the arbitration –
but its reliance on those clauses is misplaced, because, despite
those clauses, those contracts were indeed
renewed or extended. The
Department conceded expressly, including in the termination letter of
24 July 2015 that at the time Mr
Baron was employed by the
Department. Further, there is no proof that there was any provision
similar to a “non-expectation”
clause applicable at the
time. In any event, such a clause does not necessarily exclude a
reasonable expectation of renewed or
extended employment.
[4]
[35]
As the record shows, at the arbitration, Mr Baron’s testimony
went uncontested. On his version,
which the arbitrator reasonably
accepted,
[5]
he established that
he had a reasonable expectation of being retained in the position as
Programme Manager even in terms of the
three-year contract. The
high-watermark of the questioning of Mr Baron by the Department’s
legal representative turned around
whether Mr Baron could have had
such a reasonable expectation because he applied for the position
which had been advertised. It
is clear from the questioning that Mr
Baron’s case at the arbitration was that, but for the fact that
the new Deputy Director-General,
Ms Ndudane, did not approve his
appointment, he would have been appointed to the post. Furthermore,
that he saw the new appointment
merely as a continuation of the
position that he had been occupying until he received the letter of
24 July 2015 from Ms Middleton
terminating his employment. Mr Baron
explained why that was the case. The only reason the post was
advertised was to make it part
of the “fixed establishment”.
He was not only involved in drafting the advertisement, and
instrumental in determining
what was required of the incumbent for
the post, but also in securing additional funding for the Unit. He
was the best candidate,
and this was confirmed by the fact that the
entire interviewing panel unanimously recommended his appointment.
Even though there
was no written guarantee that he would be
appointed, according to his uncontested evidence, it was “a
given” that he
would be appointed to the position advertised.
[36]
Mr Baron was sceptical about the termination of his contract on 24
July 2015, because everyone else
in the Unit that had been employed
on a similar basis as him, including Mr Titus, remained employed in
the Department. His fixed-term
contracts had been extended several
times, both orally and/or in writing. At the arbitration, Mr Baron
explained as follows: “I
believe my reasonable expectation was
that the position that I had at the Department, the contracts I have
had that [were] extended
continuously for five periods would be in
effect extended for another three years plus another year as
approvals were given, so
[as] to be [an] ongoing position from where
I was sitting”. He clarified what he meant by “approvals”.
He said:
“You see the approvals for the establishment of this
unit was also that you’d be appointed for three years and it
would
be renewed on an annual basis subject to the availability of
funding. So it would be – there’s an automatic renewal
of
12 months on the condition that the funding has been approved for the
post and that was my expectation, that I was being appointed
for the
additional three-year contract in terms of the approvals”.
[37]
At the arbitration, the Department’s legal representative
stated the following to Mr Baron: “I
put it to you that you did
not have any reasonable expectation for that contract which was
advertised to be renewed because you
participated in a public
interviewing process”. In response, Mr Baron related the
assurances given to him by both Ms Middleton
and Mr Mannya and what
had occurred after he had been asked to clear his credit record and
stated: “… Subsequent to
that, in July I was still
working at the Department and it was an ongoing process. So based on
that I had the reasonable expectation
that I am going to be issued
with a three-year contract and it’s just a matter of time for
this to happen and as I under
oath indicated what I saw in the
submission – unfortunately the submission is not here –
but what I saw in the submission,
it stipulated that the entire
selection panel recommended me to be appointed as – in other
words, those individuals who said
Denver, sort out this judgement of
yours and we will appoint you. They did that. So my expectation was
to be given and issued a
three-year contract and it was just a matter
of time.”
[38]
In response to a proposition put to him during questioning by the
legal representative of the Department,
that the arbitrator did not
have jurisdiction to deal with a “non–appointment
dispute”, Mr Baron answered: “…
I believe that you
are incorrect . . .I was summarily dismissed by the Department based
on the submission and comments made by
the DDG that was then
basically given – as in . . . go and dismiss Mr Baron. So I was
dismissed. I believe I was working
at the Department, I was coming in
there every day, working, doing my work and on the 24 July I was
dismissed from my position
at the Department and the position that I
had at the Department was Programme Manager for the Working for
Fisheries Programme.
So I was dismissed and I was expecting to be
issued with a contract for a three-year period in the position that I
was holding
and clearly from my evidence that I’ve given Ms
Middleton was also shocked that she had now been instructed to
dismiss me
on the 24 July”. Mr Baron also referred to the
termination letter to corroborate his evidence that he was still
employed
in the Department at the time the letter was given to him.
[39]
Thus as far as Mr Baron was concerned, even though he had to apply
for the advertised position, his
appointment to that position was a
foregone conclusion and for him, it was just as if his contract was
to be extended for another
three or more years. That he had a
reasonable expectation in that regard was not countered with evidence
from the Department. In
those circumstances, it was reasonable for
the arbitrator to accept Mr Baron’s version-which was not
demonstrated to be improbable
or far-fetched – and to have made
the findings that she made regarding that expectation.
[6]
The fact that he applied for the position that was advertised does
not matter.
[7]
[40]
What the Department purported to do in its cross-review in the Labour
Court was to put up a case that
it did not put up before the
arbitrator. In effect, it was trying to appeal the arbitrator’s
findings, which was impermissible.
The Department does not at all
refer to prospects of success in its request for condonation. In
addition, the Department’s
reasons for the delay in filing the
cross-review are vague. According to the Department, the cross-
review was filed late because
the Department had “received
conflicting legal opinions”, “had to obtain further
instructions” and because
“senior counsel had requested a
transcription of the record.” But these are not fully explained
in order to enable
the court to appreciate with a reasonable degree
of certainty how exactly the delay came about, and to determine
whether it was
reasonable in the circumstances. The entire
condonation aspect is dealt with in four paragraphs in the cross
-review.
[41]
It is trite that in condonation applications, good or sufficient
cause must be shown by the party seeking
condonation for a delay.
[8]
This not only involves giving a full explanation for the delay, but
also showing that it has reasonable prospects of success. Generally,
a slight delay and good explanation for the delay could compensate
for weak prospects of success, and good prospects could make
up for a
long delay.
[9]
It was for the
appellant to show that it had good prospects of succeeding with its
cross- review, that, despite the fact that it
had adduced no evidence
to counter Mr Barron’s evidence at the arbitration, and that
there was a reasonable prospect that
the Labour Court would find that
the arbitrator’s findings and conclusions, in those
circumstances, were not reasonable.
In that regard, the Department
failed. The Labour Court correctly refused to condone the late
cross-review, otherwise, by dismissing
it.
[42]
Similarly, the Labour Court’s conclusions regarding the review
brought by the respondent cannot
be faulted. The provisions of
section 193 of the LRA are clear and its meaning has been clarified
in decisions,
inter
alia
,
of this Court
[10]
and the
Constitutional Court.
[11]
Mr
Baron had no
onus
to show that it was not reasonably practicable for him to be
reinstated. Having found that Mr Baron had been dismissed as is
contemplated
in section 186(1)(b) of the LRA – in accordance
with section 193 – the arbitrator had to require Mr Baron’s
reinstatement.
[12]
Mr Baron
wanted to be reinstated to the position he held at the time of the
dismissal letter, which was to be extended for three
years. There was
nothing to show that the circumstances surrounding the dismissal are
such that the continued employment relationship
would be intolerable.
There was further nothing to show that it was not reasonably
practicable for the Department to reinstate
Mr Baron as he had
sought, and Mr Barron’s dismissal was reasonably found to be
both, substantively and procedurally unfair.
[43]
In the circumstances, the appeal stands to be dismissed. There is no
reason in law and fairness why
the costs should not follow the
result.
[44]
Accordingly, the following is ordered: The appeal is dismissed with
costs.
P
Coppin
Judge
of the Labour Appeal Court
Savage
and Murphy AJJA concur in the judgment of Coppin JA.
APPEARANCES:
FOR
THE APPELLANT:
T Masuku SC
Instructed
by the State Attorney (Cape Town)
FOR
THE RESPONDENT:
V Barthus
Instructed
by Webber Wentzel.
[1]
Act
66 of 1995.
[2]
Public
Service Act,1994.
[3]
The
Constitution of the Republic of South Africa, 1996.
[4]
See:
Mediterranean
Woollen Mills (Pty) Ltd v South African Clothing and Textile
Workers’ Union
1998 (2) SA 1099 (SCA).
[5]
See:
inter
alia
,
Bargaining
Council for the Furniture Manufacturing Industry Kwa- v UKD
Marketing and Others
[2013]
2 BLLR 119
(LAC) paras 15-17.
[6]
See
previous footnote.
[7]
Compare:
McInnes
v Technikon Natal
(2000) 21 ILJ 1138 (LC);
Ekhuruleni
West College v Education Labour Relations Council and Others
(JA55/2016)
[2017] ZALAC 75
(30 November 2017) (LAC).
[8]
See:
inter
alia
,
Melane
v SANTAM Insurance Co. Ltd
1962 (4) SA 531
(A) at 532 C-F.
[9]
See
previous footnotes.
[10]
See,
inter
alia
,
Kroukam
v SA Airlink (Pty) Ltd
[2005] 12 BLLR 1172 (LAC).
[11]
See,
inter
alia
,
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[2008] 12 BLLR 1129 (CC).
[12]
Maepe
v Commission for Conciliation, Mediation and Arbitration and Another
(2008)
29 ILJ 2189 (LAC) para 13.