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[2009] ZALCJHB 91
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University of Pretoria v Commission for Conciliation Mediation And Arbitration and Others (J1031/08) [2009] ZALCJHB 91 (15 January 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO: J 1031/08
In
the matter between:
UNIVERSITY
OF PRETORIA
APPLICANT
and
COMMISSION
FOR CONCILIATION
MEDIATION
& ARBITRATION
1
ST
RESPONDENT
COMMISSIONER
JANSEN VAN VUUREN N.O
2
ND
RESPONDENT
JUDITH
GILDENHUYS
3
RD
RESPONDENT
JUDGMENT
Nyathela
AJ
Introduction
[1]
This is an application in terms of which
applicant seeks the following declaratory orders:
1.1
An order declaring that the third
respondent was not dismissed by the applicant.
1.2
In the alternative to 1.1 above, that the
jurisdictional ruling handed by second respondent under case number
GAPT 1385-08 dated
07 May 2008 issued under the auspices of the first
respondent be reviewed and set aside.
1.3
An order declaring that the first
respondent has no jurisdiction to entertain the dispute referred to
it by the third respondent
pertaining to her alleged unfair
dismissal.
1.4
In the alternative to 1.3 above, the matter
be remitted to the first respondent to adjudicate the dispute
de
novo
before a commissioner other than
the second respondent.
1.5
Costs only in the event of opposition.
The
parties
[2]
The applicant is the University of
Pretoria, a tertiary institution established in terms of
Higher
Education Act 101 of 1997
and a juristic person as contemplated in
section 20(4)
thereof having its principal place of business at
Lynnwood Road, Hillcrest, Pretoria.
[3]
The first respondent is the Commission for
Conciliation Mediation and Arbitration, a juristic person established
in terms of
section 112
of the LRA.
[4]
The second respondent commissioner Jansen
Van Vuuren, a commissioner of the first respondent. The second
respondent is cited herein
in his capacity as the commissioner who
made the jurisdictional ruling under case number GAPT 1385-08.
[5]
The third respondent is Judith Geldenhuys,
a former employee of the applicant.
The
facts
[6]
Third respondent was employed by applicant
in terms of a series of fixed-term contracts as a part-time lecturer
in the Department
of Mercantile Law which were renewed each time they
expired. The employment commenced on 01 February 2004 and the last
contract
expired on the 30
th
November 2007.
[7]
Third respondent applied for appointment on
a permanent basis. She was interviewed on 30 November 2007 but was
not successful.
[8]
On or about 07 January 2008, third
respondent was offered a further fixed term contract on better terms
which would cover the first
six months in 2008.
[9]
Third respondent declined the offer stating
that she expected to be appointed on a permanent basis.
[10]
On 28 January 2008, third respondent
was presented with written reasons for the decision not to appoint
her on a permanent basis.
[11]
On 31 January 2008, third respondent
referred an alleged unfair dismissal dispute to the first respondent.
The dispute was conciliated
on 27 February 2008, it remained
unresolved. The dispute was scheduled for arbitration and the
arbitration hearing took place on
05 May 2008. During the arbitration
hearing, applicant raised a point in limine that first respondent has
no jurisdiction to handle
the dispute since in its view third
respondent was not dismissed. According to applicant, third
respondent cannot rely on a dismissal
in terms of
section 186(1)(b)
of the LRA since she had been offered another fixed term contract on
even better terms.
[12]
The point in limine was rejected by the
second respondent.
[13]
Applicant was then served with a notice of
set down of the arbitration hearing to be held on 15 May 2008. The
arbitration hearing
has been postponed
sine
die
pending the outcome of this
application.
Applicant’s
Submissions
[14]
Third respondent’s case pertains to
her alleged dismissal as contemplated in
section 186(1)(b)
of the
LRA.
[15]
According to third respondent, she
reasonably expected the applicant to appoint her on a permanent
basis. Applicant does not ask
this court to reject third respondent’s
assertion of such expectation.
[16]
A reasonable expectation on the part of an
employee employed in terms of a fixed term contract that, after
expiry of the fixed term
contract, that employee will be employed in
terms of a permanent contract of employment is, in law, not an
expectation which can
found a claim in terms of
section 186(1)(b)
of
the LRA.
[17]
Third respondent has admitted that she was
offered a renewal of her fixed term contract on terms not les
favourable than that of
her previous contracts. The reason why she is
currently not an employee of the applicant is her unwillingness to
accept an offer
to renew the contract on the same or similar terms as
before, and not because of the applicant’s failure to make such
offer.
Third
Respondent’s Submissions
[18]
Third respondent disputed applicant’s
allegation that she presented lectures in the place of permanent
lecturers who were
absent as a result of their sabbatical or
maternity leave and stated that she did the same work as permanently
appointed employees.
[19]
Third respondent’s case revolves
around two issues, namely that the terms offered were on less
favourable terms and that
section 186(1)(b)
of the LRA if properly
interpreted includes a legitimate expectation to indefinite
employment on similar terms.
[20]
Third respondent declined the offer of
another fixed term contract on the basis that she had a reasonable
expectation of permanent
appointment.
Legal
position
[21]
Section 186(1)(b)
of the LRA provides the
following: “
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;”.
[22]
In
Dirks v
University of South Africa (1999) 20 ILJ 1227 (LC)
– the court held that employees cannot claim to have been
dismissed within the meaning of
section 186(1)(b)
of the LRA if they
expected that they would be permanently appointed.
[23]
In
McInnes v
Technicon Natal (2000) 21 ILJ 1138 (LC)
–
the court held at para 20 and 21 as follows: “
What
section 186(1)(b)
clearly seeks to address is the situation where an
employer fails to renew fixed- term employment where there is
reasonable expectation
that it would be renewed. It is the employer
who creates this expectation and it is then this expectation, created
by the employer,
which now gives the employee the protection afforded
by this section. If the expectation which the employer created is
that the
renewal is to be indefinite, then the section must be held
to also cover that situation”.
[24]
In
University
of Cape Town v Auf der Heyde (2001) 22 ILJ 2647 (LAC)
– the court stated at para 20 as follows: “...
For
the respondent, Mr Janisch submitted that the respondent reasonably
expected the appellant to renew his fixed- term contract
either by
extending it to five years or by appointing him permanently. In
Dierks v University of South Africa (1999) 20 ILJ 1227
(LC) it was
held that an expectation of renewal in terms of
section 186(b)
does
not include an expectation to be appointed permanently. In McInnes v
Technicon Natal (2000) 21 ILJ 1138 (LC) it was held that
section
186(b)
covers a reasonable expectation of a permanent appointment (at
1143B-F). It is not for present for present purposes necessary to
resolve this difference of opinion. I shall assume, without finding,
that the reasonable expectation of a permanent appointment
falls
within the ambit of
section 186(b)
”.
[25]
In
SA Rugby
(Pty) Ltd v CCMA & Others
(2006) 1 BLLR 27
(LC)
–
the court held that “
what
section
186(1)(b)
requires in expressed terms is a reasonable expectation on
the part of the employee that there would be a renewal of the fixed
contract in question, i.e the said 3 month contract on the same or
similar terms, not an expectation of another contract for a period
of
1 year and for a different purpose”.
[26]
In
Vorster v
Rednave Enterprises CC t/a Cash Converters Queenswood
[2008] ZALC 101
;
(2008) 11 BLLR
1111
(LC)
– the court held at
para 20 as follows: “
The question
that arises is whether or not the Applicant had a legitimate
expectation that the contract will be renewed and that
she would be
appointed on a permanent basis. I am of the view that the evidence
supports this conclusion and that the Applicant
did in fact have a
legitimate expectation that the contract would be renewed and be made
permanent. As a result I am of the view
that that Applicant was
dismissed as contemplated by
section 186(1)(b)
of the LRA...”.
Analysis
[27]
It clear from the case law referred to
above that there are two schools of thought regarding the question
whether the concept of
reasonable expectation as contained in
section
186(1)(b)
of the LRA includes an expectation for permanent
appointment or not.
[28]
In my view, the LRA is a piece of social
legislation which should be interpreted in a liberal manner so as to
ensure the attainment
of fairness at the workplace.
[29]
I am further of the view that the purpose
of
section 186(1)(b)
of the LRA was to curb the anomaly that
employers would deprive employees of job security and other benefits
which are enjoyed
by permanent employees by simply employing
employees on a fixed term contracts and renewing the said contracts
each time such contracts
expired.
[30]
In view of the purpose of
section 186(1)(b)
it could not have been the intention of the legislature to limit the
concept of reasonable expectation to the renewal of the contract
and
thereby exclude an expectation of permanent employment where the
evidence shows that the employee indeed had a reasonable expectation
of permanent employment.
[31]
I therefore agree with the decision in
Vorster v Rednave Enterprises CC t/a
Cash Converters Queenswood
referred to
above that concept of reasonable expectation as contained in
section
186(1)(b)
includes an expectation for permanent appointment. In his
award second respondent has dealt with the divergence of opinion on
this
aspect and also substantiated his preference for the view that
section 186(1)(b)
should include an expectation for permanent
appointment. In the circumstances the application
for declaratory
orders as contained in prayer 1 and 3 of the Notice
of Motion cannot be granted.
[32]
Applicant has in the alternative submitted
that second respondent’s ruling should be reviewed and set
aside based on various
grounds which will be dealt with below.
However, the crux of applicant’s review application is that
second respondent’s
interpretation of the law is incorrect
since the concept of reasonable expectation should not include an
expectation by part time
employees to be employed on a permanent
basis. The further central issue in the review application is that
second respondent made
a conclusion that applicant’s failure to
give effect to the expectation of permanent employment “
constituted
an unfair dismissal as contemplated in
section 186(1)(b)
of the Act”
is inexplicable and irreconcilable with
the provisions of the Act.
[33]
I shall deal with the grounds for review in
the context of each one of the above issues.
Do
the provisions of
section 186(1)(b)
of the LRA exclude an expectation
of permanent appointment by part-time employees
[34]
Section 213
of the LRA which defines the
term employee does not contain any distinction between permanent and
part time employees. The only
persons excluded from the definition of
employee are independent contractors. Furthermore, part time
employees do not fall within
the category of persons excluded from
the application of the LRA in terms of
section 2
of the LRA. I
therefore find that the provisions of the LRA in general apply to
part time employees as well.
[35]
However, applicant’s review is based
on the view that
section 186(1)(b)
of the LRA does not apply to an
expectation of permanent employment by part time employees and thus
should be confined to an expectation
by permanent employees on a
fixed term contract.
[36]
I must point out that the wording of
section 186(1)(b)
of the LRA does not contain any exclusion which
applicant is reading into the section. The entire section does not
distinguish
between part time and permanent employees nor does it
contain any exclusion of any category of employees. In my view, the
cardinal
issue is that any employee who is employed on a fixed term
contract and has a reasonable expectation of the renewal of the
contract
or appointment on a permanent basis can rely on
section
186(1)(b)
of the LRA.
[37]
The above conclusion reaffirms the liberal
interpretation which should be adopted in interpreting the provisions
of social legislation
like the LRA as referred to in paragraph 23
above.
[38]
In view of the above conclusion, I am of
the view that the ruling by second respondent which in effect implies
that
section 186(1)(b)
also applies to an expectation of permanent
appointment by part time employees on fixed term contract is not
unreasonable, irrational,
contrary to case law, evidence of the
commission of a latent gross irregularity and neither shows that he
failed to apply his mind
to the facts.
Did
third respondent make a ruling that applicant’s failure to give
effect to the expectation of permanent employment “constituted
an unfair dismissal as contemplated in
section 186(1)(b)
of the
Act”.
[39]
I have perused third respondent’s
ruling and found that third respondent never made a ruling that
applicant’s failure
to give effect to the expectation of
permanent employment “constituted an unfair dismissal as
contemplated in
section 186(1)(b)
of the Act”. On paragraph 20
of the ruling, third respondent stated the following: “
The
fact that the respondent in casu (applicant on review) has offered a
new fixed term contract to the applicant (on better terms)
does not
necessary imply that there was no dismissal as contemplated in
section 186(1)(b)
of the Act”.
This is the only view expressed by third respondent in the entire
ruling which is closest to the finding he is alleged to have
made. It
is clear from the above extract that third respondent only made a
finding that there was a dismissal but such finding
had nothing to do
with the fairness of such dismissal. In the portion entitled “Ruling”
third respondent ruled that
first respondent has jurisdiction on the
dispute and that the matter should be set down for arbitration. This
conclusion militates
against any statement that third respondent
pronounced on the fairness of the dismissal since there would have
been no purpose
to set the matter down for arbitration if there was
already a finding that applicant committed an unfair dismissal. I
therefore
conclude that third respondent never made the finding as
alleged by applicant and thus the grounds for review based on this
fact
cannot stand.
Did
third respondent fail to properly apply his mind to the significance
of the fact that the applicant offered a renewal of the
fixed term
contract on the same (or better) terms
[40]
On page 4 of the ruling, second respondent
stated the following: “
The
applicant pointed out, however that it was not her case that the
respondent had created an expectation to the effect that her
fixed
term contract would be renewed or that the respondent had failed to
renew such a contract. She, on the contrary, contended
that the
respondent had created an expectation that she would be permanently
be employed and it was the respondent’s failure
to give effect
to that expectation which constituted an unfair dismissal as
contemplated in
section 186(1)(b)
of the Act”.
Second
respondent proceeded to state that: “
The
point is well taken. The fact that the applicant (applicant on
review) had been offered a further fixed term contract is indeed
irrelevant in this circumstances”.
[41]
It is clear from the above extracts from
the ruling that the fact that applicant had offered third respondent
a further fixed term
contract was not the issue before third
respondent. The issue was the failure by applicant to meet third
respondent’s expectation
of permanent employment. It would have
served no purpose for second respondent to have considered the fact
that applicant had offered
a renewal of the contract even on better
terms since that issue was not the cause of the dispute before him.
[42]
I therefore find that second respondent’s
failure to deal with the applicant’s offer of further fixed
term contract
of employment does not prove that he failed to apply
his mind to the issues properly before him. This ground of review
fails.
[43]
In the premise, I make the following order:
Order
43.1 The application for
a declaratory order is dismissed.
43.2 The review
application is hereby dismissed
43.3 The jurisdictional
ruling made by second respondent under case number GAPT 1385-08 dated
07 May 2008 stands
43.4 Applicant is ordered
to pay costs.
_______________
Nyathela
AJ
Date
of Hearing
:
18
June 2009
Date
of Judgment :
15
January 2009
Appearances
For
the Applicant : Adv
Redding SC
Instructed
by:
Anton Bakker Attorneys
For
the Respondent: H. Cheadle