About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2009
>>
[2009] ZALCJHB 4
|
|
South African Revenue Service v Commission for Conciliation Mediation And Arbitration and Others (JR1577/07) [2009] ZALCJHB 4 (10 June 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR1577/07
In
the matter between:
SOUTH
AFRICAN REVENUE
SERVICE Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
GERHARD
JANSE VAN VUUREN,
N.O. Second
Respondent
CHARLENE
NADINE
HAWKINS Third
Respondent
JUDGMENT
FRANCIS J
Introduction
1.
This is an application to review and set aside an arbitration award
issued by the second respondent (the commissioner) dated
20 April
2007 under case number GAPT5835-05. This was after the
commissioner had found that the third respondent had been
unfairly
dismissed by the applicant and was ordered to compensate her R330
666,68 within fourteen days of the award and the costs
of the award.
2.
The application was opposed by the third respondent.
The background
facts
3.
The South African Revenue Service (the applicant) entered into a
12-month contract of employment with the third respondent, in
terms
of which she was appointed to work for the applicant as a SAP
consultant from 15 February 2004 to 14 February 2005.
She was
assigned to work on the Kopano Project, with the business
manager/business owner thereof being Gareth English (English)
a
senior manager within the applicant’s financial division.
4.
In late January/early February 2005, English held a meeting with the
third respondent and informed her that her contract would
not be
extended. He offered her, instead, a three-month contract
described by him as a termination contract, which she accepted.
Alan Yates (Yates), a SAP consultant employed by Bytes
Technologies and assigned to the applicant was also present at the
meeting. Subsequent thereto, the parties entered into a
three-month contract for the period 15 February 2005 to 14 May 2005.
Her last working day with the applicant was 13 May 2005 with the
three-month contract terminating on 14 May 2005.
The arbitration
proceedings
5.
On 8 June 2005, the third respondent referred a dispute to the first
respondent, the Commission for Conciliation, Mediation and
Arbitration (the CCMA), in which she contended that she was unfairly
dismissed on 13 May 2005 and claimed six months’ remuneration
in compensation.
6.
At the ensuing arbitration presided over by the commissioner, the
third respondent testified and English, Yates and Johan Yssel
(Yssel)
a SAP consultant who had worked on the Kopana Project with the third
respondent testified on behalf of the applicant.
7.
The third respondent’s case before the commissioner was based
on the doctrine of estoppel. Her counsel contended
that the
matter could be essentially distilled down to the following issues:
7.1
Did Yates promise the third respondent that her contract with the
applicant would be extended
for a period of six months?
7.2
If Yates did so, should the applicant be liable for the breach of
this agreement.
8.
It was argued before the commissioner that it was apparent that Yates
represented to the third respondent that her contract would
be
extended for a period of six months and that her contract had been
approved. She had relied upon the correctness of the
representation which was to her detriment. In the light of the
delegated authority that Yates had as a team leader and the
way the
applicant allowed Yates to conduct himself and represent to the third
respondent, the applicant should be estopped from
denying that Yates
did not have the authority to bind the applicant. She had no
reason to doubt Yates when he told her that
her contract had been
approved, and no blame should be apportioned to her for relying upon
this representation by Yates.
The applicant’s case was
that Yates had not made any representations to the third respondent
and if he did he did not have
the requisite authority to approve the
extension of her contract.
9.
The commissioner issued an award dated 20 April 2007. The
commissioner found that the third respondent was dismissed because
firstly Yates had created an expectation that the third respondent’s
fixed-term contract would be renewed. Secondly
English a
manager of the applicant and the business owner of the project that
she had worked on, had treated her inconsistently
vis-a-vis
some of her colleagues whose contracts
he had extended, with the result that Hawkins could reasonably have
expected to be treated
similarly. Having found that she was
dismissed, he awarded her R330 668.68 as compensation.
Analysis of the
facts and arguments raised
10.
The applicant has raised several grounds of review. It is not
necessary to deal with those grounds of review. The
main issue
is whether the third respondent had established that she was
dismissed in terms of section 186(1)(b) read with section
192(1) of
the Act. The applicant disputed that the third respondent was
dismissed and relied on the decision of
SARPA v SA Rugby (Pty) Ltd
& Others; SA Rugby (Pty) Ltd v Sarpu
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC)
where the following was said at page 856 at paragraph 41:
“
The
question before the court a quo was whether, on the facts of the
case, a dismissal had taken place. The question was not
whether
the finding of the commissioner that there had been a dismissal of
the three players was justifiable, rational or reasonable.
The issue
was simply whether, objectively speaking, the facts which would give
the CCMA jurisdiction to entertain the dispute existed.
If such
facts did not exist, the CCMA had no jurisdiction irrespective of its
finding to the contrary.
11.
It is clear from the
Sarpu
decision that the issue at hand is whether the
CCMA had jurisdiction and this is a factual one. The
traditional grounds of
review are therefore not applicable in
deciding whether a dismissal had taken place. They will only
become applicable once
it was established on the facts that the CCMA
had jurisdiction to hear the matter and the commissioner had made
certain findings
that are reviewable.
12.
It is common cause that the third respondent was employed on a 12
month fixed term contract that was extended by a further three-month
period. After her contract was not renewed, she referred an
unfair dismissal dispute in terms of section 186(1)(b) of the
Act.
In her referral, she summarised her dispute as follows:
“
The
contract of employment expired on 14 May 2005. I had been told
[by Yates] that the SARS was going to extend the contract
for an
additional six months. This was discussed with members of
management and it was agreed that I would get a contract
in writing
before 14 May 2005. On Friday 13 May 2005, I asked management
about the contract and was told that there was insufficient
budget
and that the contract could not be fulfilled.”
13.
In terms of section 192 of the Act, an employee must establish the
existence of a dismissal and if the existence of the dismissal
has
been established, the employer must prove that the dismissal was
fair. The third respondent was required to establish
that she
was dismissed in terms of section 186(1)(b) of the Act. Once
she had done so the applicant would than had to prove
that the
dismissal was fair. If the commissioner found that the
dismissal was unfair, the commissioner would than have to
determine
the issue of relief.
14.
The issue that the commissioner had to decide like in the
Sarpu
matter was whether there had been a dismissal or
not. It is an issue that goes to the jurisdiction of the CCMA.
The
significance of establishing whether there was a dismissal or not
is to determine whether the CCMA had jurisdiction to entertain
the
dispute. It follows that if there was no dismissal, then the
CCMA had no jurisdiction to entertain terms of section 191
of the
Act.
15.
In an attempt to overcome the difficulties in proving that she was
dismissed, the third respondent’s case was based on
the
doctrine of estoppel. Her counsel who had represented her at
the arbitration proceedings contended that the matter could
be
essentially distilled down to the following issues:
15.1
Did Yates promise the third respondent that her contract with the
applicant would be extended for a
period of six months?
15.2
If Yates did so, should the applicant be liable for the breach of
this agreement.
16.
The third respondent’s case in essence was that she was
promised a six-month renewal of her fixed term contract as a SAP
consultant working on work stream 2 of the Kopano project by Yates, a
consultant, who she contended was her line manager on work
stream 2
from March 2005 onwards. She accepted that Yates did not have
the authority to bind the applicant, but contended
that Yates had
expressly told her that her new contract had been approved by
English, who had signed her previous contracts, and
had the authority
to bind the applicant and who she had expected would sign her new
contract. She contended that such approval
on the part of
English was expressly communicated to her by Yates at a meeting held
at the Mug & Bean at the beginning of May
2005, which meeting was
attended by Yssel. She denied that this discussion and other
similar ones were undertaken by Yates
in his capacity as a project
manager involved in the planning of new/future projects. She
contended that Yates/English had
breached their promise when Yates
advised her on 13 May 2005 that budgetary problems had arisen, which
culminated in Yates failing
to present her with her new contract by
the time of the lapse of her existing contract on 14 May 2005.
It was argued on her
behalf that if Yates did not have actual
authority to bind the applicant, it was, in the circumstances that
transpired, estopped
from denying that Yates lacked authority.
17.
The applicant’s case in essence was that Yates had only worked
on work stream 2 for 2 weeks in December 2004 and March
2005 when he
served as an acting team leader, and was not the third respondent’s
line manager. He had served as an
acting team leader for 4
weeks. In April 2005, Yates had taken up the position of
project manager of the Fundamental Investments
for the Future Project
(FIF project) and was responsible for planning/compiling the budget
for the project. Once he had completed
his planning, he would
have to submit his budget/plan to Burger, to whom he reported, who
would then submit it to English for final
approval before the plan
could be resourced. It was in this context that Yates had held
discussions with
inter alia
the third respondent and Yssel and placed their
names on the business plan as a potential resource as opposed to
communicating a
renewal of their contracts. Certain of those
discussions had taken place at the Mug & Bean, and, on occasion
Yates had
met Hawkins and Yssel together there. These
discussions did not involve contractual negotiations and no offer of
employment
was made. Yates did not, at this planning stage,
discuss renewing the third respondent’s contract with English
and
English did not relay his acceptance of renewing the third
respondent’s contract to Yates. This was not challenged
during cross examination when it was put to English that what had
happened was that Yates had probably misrepresented to the third
respondent that English had agreed to the new contract.
Similarly, it was put to Yates under cross examination that he had
made a promise that he knew he could not keep. Yates had also
not told the third respondent that English had approved a renewal
of
her contract. When Yates ultimately failed to get budgetary
approval for the FIF project, he informed the third respondent
about
it.
18.
The requirements for estoppel are as follows:
18.1
A representation by words or conduct of certain factual position.
18.2
That the party act upon the correctness of the facts as represented.
18.3
There must therefore have been a casual connection between the
representation and the act.
18.4
That the parties so acted or failed to act to his detriment.
18.5
That the person who made the representation could bind the defendant
by means of a representation.
19.
The commissioner was obliged in determining whether the third
respondent was dismissed within the meaning of section 186(1)(b)
of
the Act to pose and answer the following two questions in her favour:
19.1
Did the third respondent have an expectation that her contract would
be renewed?
19.2
If so, was her expectation reasonable?
20.
The commissioner found that the third respondent had been dismissed
because firstly Yates had created an expectation that her
fixed-term
contract would be renewed and secondly, English had treated her
inconsistently
vis-a-vis
some
of her colleagues, SAP consultants whose contracts had been extended,
with the result that the third respondent could reasonably
have
expected to be treated similarly.
21.
The commissioner did not deal with the issue of estoppel at all.
It is also clear from the facts placed before the commissioner
that
Yates did not have the requisite authority to approve the extension
of her contract. The only person who could do so
was English
and he had done so in the past. There was direct evidence on
the part of both English and Yates on this issue
which was not
considered by the commissioner. The fact that the third
respondent had no reason to doubt what Yates
had said to her,
which he denied, could not bind the applicant. Yates after all
was a consultant of the applicant on a specific
project. It
cannot be said on the third respondent’s version alone that she
harboured a reasonable expectation that
her contract would be
renewed. She had accepted that Yates did not have authority to
bind the applicant.
22.
The third respondent’s counsel had put it to English when he
testified that what had happened was that Yates had probably
misrepresented to the third respondent that English had agreed to the
new contract. This was not challenged. Similarly, it
was put to
Yates during cross examination that he had made a promise that he
knew he could not keep. Yates had also not told the
third respondent
that English had approved a renewal of her contract.
23.
The third respondent’s claim is based on the promise made by
Yates. She should perhaps have pursued other contractual
remedies and not relied on the provisions of section 186(1)(b) of the
Act. There was simply no evidence of a reasonable expectation
and even if there was, this could not bind the applicant. The
principles of estoppel would also not have been met since Yates
could
not bind the applicant. In conclusion, I am of the view that
the third respondent has not shown that there had been
a dismissal in
terms of section 186(1)(b) and, as a result, the CCMA had no
jurisdiction to entertain the dispute.
24.
The application stands to be dismissed. It is, in my view, in
accordance with the requirements of the law and fairness
that there
be no order as to costs.
25.
In the circumstances I make the following order:
25.1
The arbitration award dated 20 April 2007 under case number
GAPT5835-05 and issued by the second respondent
is reviewed and set
aside and replaced with an order that the third respondent was not
dismissed in terms of section 186(1)(b)
of the Act.
25.2
There is no order as to costs.
____________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT
: A T
MYBURGH INSTRUCTED BY BRINK COHEN LE ROUX INC
FOR
THIRD RESPONDENT
:
W G LA
GRANGE INSTRUCTED BY GLYN MARAIS INC
DATE
OF HEARING
: 15
APRIL 2009
DATE
OF JUDGMENT
: 10 JUNE
2009