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[2009] ZALCJHB 99
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Banda v Commission for Conciliation, Mediation and Arbitration and Others (J1214/08) [2009] ZALCJHB 99 (11 August 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. J1214/08
In
the matter between:
GABRIEL
TSIETSI
BANDA
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
1
st
Respondent
and
COMMISSIONER
T SEKHABISA
N.O.
2
nd
Respondent
and
EMFULENI
LOCAL
MUNICIPALITY
3
rd
Respondent
JUDGMENT
VAN
NIEKERK J
[1] The applicant was
employed by the third respondent as a supply chain manager. The terms
of the applicant’s contract provided
that he was to be employed
for a fixed term, commencing on 1 November 2005 and terminating on 30
November 2007. The applicant’s
contract was not renewed.
Relying on s 186 (1) (b) of the LRA (which defines as a ‘dismissal’
for the purposes of the
Act as a refusal by an employer to renew a
fixed term contract of employment in the face of a reasonable
expectation that the contract
would be renewed), the applicant
referred an unfair dismissal dispute to the CCMA. The dispute was
referred to arbitration. In
his award, the commissioner ruled that
the applicant had failed to prove the existence of a dismissal, and
dismissed the referral
on that basis.
[2]
In these proceedings, the applicant contends that the commissioner’s
award stands to be reviewed and set aside on the
following grounds:
first, the applicant submits, the commissioner committed an
irregularity and misconducted himself by concluding
that the
applicant was not dismissed and that, instead, his employment
contract expired. Secondly, the applicant contends that
the
commissioner erroneously attached too much weight to the inadmissible
evidence of a Mr Raymond Raats (this evidence related
to the
presentation made by the consultant to the third respondent).
Finally, the applicant submits that the commissioner committed
a
gross irregularity in the conduct of the arbitration proceedings by
not affording the parties an opportunity to respond to each
other’s
heads of argument.
[3]
Mr Dodson, who appeared for the third respondent, submitted that
these submissions, proffered as they were on the basis of the
test to
be applied in review proceedings conducted under s 145 of the LRA,
were misconceived. He contended that the judgment of
the Labour
Appeal Court in
SA
Rugby Players Association & others v SA Rugby (Pty) Ltd
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC) requires this court to determine what is effectively
a jurisdictional issue
de
novo
,
and without regard to the test of reasonableness established by the
Constitutional Court in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[1]
.
In
other words, a commissioner’s ruling on the existence or
otherwise of a dismissal as defined by s 186 (1) (b) is not subject
to a ‘reasonableness’ review. That being so, the record
of the proceedings under review assumes little if any significance
in
proceedings where the commissioner’s ruling is sought to be
reviewed and set aside. Rather, it is incumbent on an applicant
to
make out a case
de
novo
in the founding affidavit. In relation to any dispute of fact that
arises from the papers, Mr Dodson submitted that the rule established
in
Plascon
Evans Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984
(3) SA 623
(A) should apply i.e. the court should have regard to the
facts stated by the respondent together with the admitted facts in
the
applicant’s affidavit, unless the factual disputes raised
by the respondent are untenable
[4] In the
SARPA
judgment, the LAC held as follows:
“
[39]
The issue that was before the commissioner 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 the
dispute
in terms of s 191 of the Act.
[40]
The CCMA is a creature of statute and is not a court of law. As a
general rule, it cannot decide
its own jurisdiction. It can only make
a ruling for convenience. Whether it has jurisdiction or not in a
particular matter is a
matter to be decided by the Labour Court. In
Benicon Earthworks & Mining
services (Pty) Ltd v Jacobs NO & others
(1994) 15 ILJ 801 (LAC) at 804 C-D, the old Labour Appeal Court
considered the position in relation to the Industrial Court
established
in terms of the predecessor to the current Act.
[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.”
What
I understand this passage to mean is that whenever a commissioner has
to determine whether or not there was a dismissal, this
is an enquiry
into a jurisdictional fact, a matter falling outside of the scope of
the CCMA’s jurisdiction. When a commissioner
makes such a
determination (as commissioners commonly do), this is done as a
matter of convenience. The function of this court
is to conduct an
enquiry
de
novo
into the existence or otherwise of a dismissal and to determine, on
the facts before it, the existence or otherwise of a dismissal.
Whatever criticisms might be levelled against the
SARPA
decision,
[2]
this court is bound by
it, and must apply it.
[5]
The legal principles to be applied are not contentious. Section 186
establishes various definitions of dismissal, including
the failure
or refusal by an employer to renew a fixed term contract on the same
or similar terms. Section 192 places the onus
of establishing the
existence of a dismissal on the employee. The effect of s 186 (1) (b)
is to override the terms of a fixed term
contract entered into
between two parties, and to impose a fresh contract on them in
circumstances where no agreement has been
reached between them. The
policy reason for what might seem to be a drastic inroad into
contractual autonomy is self evident -
the provision prevents
unscrupulous employers from circumventing the protections afforded by
the Constitution and by Chapter IX
of the Act by entering into a
series of fixed term contracts in circumstances where the expiry of
the agreed term would not constitute
a termination of the contract at
the initiative of the employer.
[6] The court must adopt
a two-stage approach to determine the existence of a dismissal. In
University
of Cape Town
v Auf der Heyde
(2001)
22
ILJ
2647 (LAC), the court described the test in the
following terms:
“
In
order to determine whether the respondent had a reasonable
expectation, it is necessary first to determine whether he, in fact,
expected his contract of employment to be renewed or converted into a
permanent appointment. If he did have such an expectation,
the next
question is whether, taking into account all the facts, the
expectation was reasonable.”
(at
para [21])
In
other words, what is required to establish the existence of a
dismissal is a subjective expectation of renewal of the fixed term
contract that is objectively reasonable.
[7]
In
SA Rugby (Pty) Ltd v CCMA &
others
(2006) 27 ILJ 1041 (LC), this
court elaborated on this approach:
“
For
the employee’s expectation to be ‘reasonable’ there
must be an objective basis for the creation of his expectation,
apart
from the subjective say-so or perception…This is an objective
enquiry; would a reasonable employee in the circumstances
prevailing
at the time have expected the contract to be renewed on the same or
similar terms. As stated in Grogan,
Workplace
Law
8 (ed) 2005 at 110-1: ‘The
notion of reasonable expectation suggests an objective test: the
employee must prove the existence
of facts that, in the ordinary
course, would lead a reasonable person to anticipate renewal.’”
[8] I turn now to the
first leg of the enquiry i.e. was there a subjective expectation of a
renewal of the applicant’s contract?
The
SARPA
judgment
makes it clear that the anticipation of the negotiation of a new
contract with no certainty that the terms will be the
same or similar
is not protected by s 186 (1) (b) – see paragraphs [48] and
[53] of the judgment. What the applicant is required
to establish to
trigger the protection of s 186 (1) (b) is an expectation of renewal
of the existing contract on the same or similar
terms. In his
founding affidavit, Banda avers that in or about October 2007 he was
informed by Tshabalala, the acting municipal
manager, that the third
respondent had passed a resolution in February 2007 to the effect
that all fixed term contracts would be
converted to permanent
employment. Banda states further that he obtained a copy of the
resolution concerned, as well as a copy
of the preceding presentation
made by the consultants containing recommendations on the basis of
which the resolution was passed,
and a copy of a settlement agreement
between the third respondent and a number of trade unions recognised
by it. Banda quotes portions
of the presentation and resolution
respectively, and concludes, on this basis, that the municipal
manager never consulted or negotiated
with him as he was mandated to
do. But nowhere in the affidavit does the applicant aver that he
subjectively expected his contract
to be renewed – his
complaint is that the municipal manager failed to enter into a
process of consultation and negotiation
with him. This is borne out
in a concession made by the applicant in the arbitration proceedings:
“
COMMISSIONER:
I understand the objection of Adv Mphahlele. The reason why you
wanted him to go further, it was to highlight that
the applicant’s
case is that his contract should have been extended until the
negotiation process.
MR MPHAHLELE: That is
correct.
COMMISSIONER: That is the
crux of your case.
Mr
MPHAHLELE: That is correct.”
Further,
in his founding affidavit, the applicant concludes, on the basis of
the resolution and the presentation, that Tshabalala
“
never
consulted or negotiated
” with
him, and that “
as a result
”,
he referred an unfair dismissal dispute to the CCMA. Section 186 (1)
(b) does not protect the expectation of a negotiation,
nor does it
protect the expectation of a temporary extension of a contract for
the purposes of a negotiation.
[9]
Nor can it be said, in my view, that the applicant has established a
reasonable, objective basis for any expectation of renewal
of his
fixed term contract. In his founding affidavit, the applicant relies
on the objective basis of the statement made by Tshabalala,
the
presentation and the resolution adopted by the third respondent in
February 2007. In so far as the presentation is concerned,
none
of the paragraphs relied on by the applicant provide for the renewal
of his fixed term contract or for its conversion into
a permanent
contract. The presentation clearly refers to the conversion of fixed
term contracts of the staff of Metsi-a-Lekoa,
a business unit
previously constituted as a separate legal entity, and later
incorporated unto the third respondent. The applicant
was not
employed by Metsi-a Lekoa. The Quotes from the presentation
incorporated into the applicant’s affidavit have been
incorporated selectively – it is clear from a reading of the
presentation annexed to the affidavit that the purpose of the
presentation (and the recommendations made by the consultants) was to
rationalise employment contracts as between different categories
of
employees as a consequence of the absorption of the Metsi-a-Lekoa
unit, and to eliminate the anomalies that that had created.
The
presentation made no reference to the applicant’s fixed term
contract, or its conversion to a permanent contract. There
is
accordingly nothing in the presentation that established a
reasonable, objective basis for the renewal of the applicant’s
fixed term contract.
[10]
In so far as the applicant places reliance on the resolution, the
applicant faces similar difficulties, since on his own version,
the
resolution was based on the presentation. If the presentation made no
recommendations for the renewal of fixed term contracts
for persons
in the applicant’s position or for their conversion into
permanent contracts, there can be no suggestion that
the resolution
would have done so. None of the paragraphs of the resolution make any
reference to either renewal of fixed term
contracts of employment or
their conversion to permanent contracts of employment.
[11]
On the basis of the
Plascon Evans
test, the third respondent’s version (i.e. that the
presentation and resolution contemplated that any conversion from
fixed
term to permanent employment applied only to the Metsi-a-Lekoa
employees) must prevail. Even on the applicant’s version that
the conversion did apply to him, this does not assist him. The facts
on which the applicant relies to establish the existence of
a
reasonable expectation establish nothing more than a far-fetched
expectation of a conversion of his fixed term contract to a
permanent
one. Aside from the fact that the resolution clearly covered specific
categories of employees (into which the applicant
does not
fall), for the applicant to submit that he had a reasonable
expectation of a temporary renewal of his contract pending
the
opening and finalisation of negotiations regarding the conversion, is
unwarranted by the facts and evidence before this court.
Accordingly,
even if the applicant harboured a subjective expectation of a renewal
of his contract, it is not an expectation that
on the evidence before
me can be described as objectively reasonable.
[12]
In so far as the other elements of an enquiry into the reasonableness
of an expectation of renewal are concerned, (the terms
of the
contract, past practice and prior promise - see Grogan
supra
at 151), none of these assist the
applicant. The applicant’s contract of employment and his
letter of appointment make it
clear that his employment was to be
limited to a two year period, and that there should be no expectation
of renewal. There is
no evidence of any past practice of renewal, nor
is there any evidence of any express prior promise. In so far as the
applicant
asserts an implied promise of renewal, I have dealt with
the documents and the oral statement on which the applicant relies.
[13]
The approach that I have adopted in the determination of this matter
and the conclusion to which I have come are wholly dispositive
of the
matter. However, I wish to express a view on the approach adopted by
the applicant in bringing this matter to court. Assuming
that I am
mistaken in relation to the manner in which matters of this nature
are to be approached by this court and assuming that
the
“reasonableness review” approach, as Mr Dodson has
labelled it, is the appropriate approach to be adopted by this
court,
this court would still have to review and set aside the
commissioner’s award only if it is persuaded that the
conclusion
to which the commissioner came falls outside of the band
of reasonableness as set out in
Sidumo.
That is to say that this court would have to scrutinise the decision
of the commissioner with a view to determining whether it
was
reasonable in light of the facts and evidence before the
commissioner. Although this does not require this court to adopt a
deferential approach to commissioners, it is, admittedly, a
significant obstacle for applicants in review proceedings and is
intended
to prevent review courts from gratuitously substituting
their discretion for that of the designated decision-makers. Without
wishing
to canvass the commissioner’s reasoning, having found
as I have in relation to the issue of reasonable expectation, it is
not difficult to deduce that my line of reasoning supports the
decision of the commissioner as well as his reasoning and logic
in
coming to it. In my view, the conclusion to which the commissioner
came hardly qualifies as one to which no reasonable decision-maker
could come. As the third respondent has correctly pointed out, s 138
of the LRA gives the commissioner a broad discretion to conduct
the
proceedings as he sees fit and that CCMA proceedings are not to be
equated to court proceedings insofar as procedure and formalities
are
concerned. The
Sidumo
test considerably narrows the scope for the review of commissioners’
rulings. As Zondo JP observed in
Fidelity
Cash Management Service v CCMA & others
(2008) 29
ILJ
964 (LAC), the
Sidumo
test is a stringent test that will ensure that awards are not lightly
interfered with; it will not be often that a commissioner’s
decision will be found to be one to which no reasonable
decision-maker could come.
[14]
In the result, the applicant has failed to satisfy the onus to prove
that he was dismissed, as required by s 192 (1). The absence
of a
dismissal means that the CCMA lacked jurisdiction to determine the
dispute referred to it by the applicant. For these reasons,
the
application stands to be dismissed.
[15]
Finally, there is no reason why costs should not follow the result.
The third respondent is also entitled to the costs of the
proceedings
on 29 January 2009 when argument was heard on a point
in
limine
raised unsuccessfully by the
applicant.
I accordingly make the
following order
1.
The application is dismissed.
2.
The applicant is to bear the costs of this application, including the
costs of
the proceedings on the 29 January 2009 when the applicant’s
point
in limine
was dismissed.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of hearing: 14 May 2009
Date
of Judgment: 11 August 2009
Appearances:
For
the applicant: Adv M S Mphahlele
Instructed
by: Mpoyana Ledwaba Inc.
For
the Third Respondent: Adv A Dodson
Instructed
by: Bowman Gilfillan Inc.
[1]
(2007) 28
ILJ
2405
(CC).
I
am indebted to Mr Dodson for the comprehensive heads of argument
filed on the third respondent’s behalf; I have drawn
liberally
on them in preparing this judgment.
[2]
Mr. Dodson submitted
inter
alia
that the judgment may not adequately have taken into account the
wording of s 192 of the LRA, which might suggest that a commissioner
has a compulsory decision-making role (as opposed to a role that is
merely a matter of convenience) in relation to the existence
of a
dismissal, and assuming there to be one, whether or not it was fair.
The SARPA judgment may also overlook the difficulty
in
distinguishing those issues that are jurisdictional from those that
are not. In the present instance, this difficulty does
not arise -
the existence of a dismissal is clearly a jurisdictional issue - at
least in an unfair dismissal dispute.