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[2013] ZALCJHB 80
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Mabotja v Department of Justice and Constitutional Development and Others (JR 364/11) [2013] ZALCJHB 80 (1 March 2013)
REPUBLIC OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 364/11
In the matter between:
PHILLEMON MMAPHUTHI MABOTJA
....................................................................
Applicant
and
DEPARTMENT OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
.........................................................
First
Respondent
GENERAL PUBLIC SERVICE
SECTORAL BARGAINING COUNCIL
...................................................
Second
Respondent
FJ VAN DER MERWE NO
..........................................................................
Third
Respondent
Heard: 10 January 2012
Delivered: 01 March 2012
Summary: Review – temporary
employee - employee disputing temporary status of his employment and
claiming to be employed for
indefinite term – employer `s
policy required temps to sign fixed term contract – employee
dismissed for persistent
refusal to sign fixed term contract - award
confirming employee `s temporary status and that his dismissal for
refusing to sign
fixed term contract not unfair, upheld on review
______________________________________________________________
JUDGMENT
______________________________________________________________
MARCUS, AJ
Introduction
This is an application in terms of
section 145
of the
Labour Relations Act 1995
to review and set aside
the award dated 3 February 2011 issued by the Third Respondent under
the auspices of Second Respondent
under case number GPBC 1088/2009,
dismissing the Applicant’s claim that he was unfairly
dismissed by the First Respondent
on 1 November 2009.
Background
Applicant (“employee”)
was employed by First Respondent (“employer”) in January
2004 as an assistant clerk
(temporary) to the Magistrates Court
Kempton Park. The temporary status of his appointment was confirmed
in the document approving
his appointment as one of four “temps”
(see Documents bundle 90). Although Applicant’s case at
Arbitration
rests on a denial of his temporary status and his
insistence that from its inception, his employment with First
Respondent was
of a permanent or indefinite nature, and not
temporary or of limited duration; it appears the division between
permanent and
temporary staff categories was one well known to and
accepted by the staff and their unions at First Respondent, the
procedure
for obtaining a permanent post being a complex one
commencing with a formal application for the post, followed by an
interview
and selection process, and the appointment of a candidate
which, inter alia, requires the approval of the regional department
head. There is little doubt the present Applicant Mr Mabotja was
aware of the distinction between the permanent and temporary
staff
categories, having himself undergone the process of applying and
being interviewed for a (permanent) senior clerk post
in July 2008.
It seems his application was unsuccessful owing to question marks
concerning the validity of certain documents
and information in his
CV and doubts about his competence for the post.
Following the employer’s
circular of 15 June 2006 issuing new guidelines on the conditions of
appointment of temporary staff
at First Respondent, ‘temps’
like the Applicant were, in terms of the circular, now required to
conclude fixed term
contracts of up to a maximum of one year’s
duration. This requirement was extended to all temporary staff
including the
Applicant. When Applicant’s contract came to an
end in 2006, he referred a dispute over his termination to
arbitration.
According to First Respondent, the dispute was settled
by the conclusion of a written settlement agreement duly signed by
the
Applicant as tabled at Bundle 62, which records that the
Applicant will be re-appointed into his former post “and will
re-occupy his post as a temporary employee as it was before his
termination” with effect 20 November 2006.
Applicant denies concluding a written
settlement agreement or that the signature on the settlement
agreement at p62 is his. He
also denies his handwriting, followed by
his signature, appearing on the following page (bundle 63) on what
is apparently the
last page of a contract dated March 2009, which
contract it is common cause the Applicant refused to sign. It is
common cause
that in response to management demands following the
2006 settlement, for Applicant to sign a fixed term contract as
required
by the 2006 circular if he wished to continue to be allowed
to perform work for the First Respondent as a temporary official,
Applicant has persistently refused to do so, thereby creating an
impasse which culminated in a meeting with the Director of Human
Resources van Loggerenberg around August 2009 “with two
witnesses present to explain to him the importance of signing the
fixed term contract and that if same is not done, his employment
shall be terminated. I urged him to speak to his union
representatives
and gave him five days to get back to me and sign
the fixed term contract which he still did not do. This led to the
First Respondent
terminating his employment”. Applicant’s
failure to respond to van Loggerenberg’s ultimatum for him to
sign
the contract, led to his employer on 30 September 2009 giving
Applicant 30 days notice in writing of the termination of his
employment
to take effect on 31 October 2009; this after he was
“given many chances to sign the fixed term contract”.
Third Respondent’s Award
The Commissioner rejected Applicant’s
claim that he was from inception employed on a permanent or
indefinite basis; hence
Applicant’s persistent refusal to sign
the fixed term contract. In my view this finding reached by the
Commissioner in
rejecting Applicant’s claim of unfair
dismissal, is not only not reviewable, it is the only conclusion a
reasonable arbitrator
could have come to. Applicant does not dispute
the initial document approving his appointment as a temp in 2004. He
also knew
of the difference between permanent and temporary
appointments in the Department, he himself having (unsuccessfully)
made application
for a permanent post in 2008. His very referral of
the present dispute to the Second Respondent, commences with the
following
words, ‘on the 2004, I have employed with the Dept
of Justice as a temporarily employment until now and I was unfairly
dismissed without notice.”
In refusing to sign a contract in
March 2009, Applicant writes on the last page of the contract, ‘I
am not refuse to sign
but I am not contract employee, I am
temporarily employee’, followed by what purports to be
Applicant `s signature (bundle
63).
Although the Applicant is now
disputing the handwriting and signature at bundle 63 to be his, this
seems to be in conformity with
the tactics continuously adopted by
the Applicant when faced with documentary evidence destructive of or
conflicting with his
denial that he was a temporary employee, of
simply denying the signature (or handwriting at p63) on the document
to be his. Thus
whilst at page 28 of the Record, Applicant, in his
testimony at the Arbitration, freely acknowledges the handwriting
and signature
at bundle 63 acknowledging his temporary status to be
his, a few lines further down at the bottom of page 28, he is
recorded
as denying his authorship of the handwriting and his
signature at p 63, thus directly changing his version of a few
moments earlier
conceding the writing was his. Then, having realised
that the contents of the settlement agreement tabled by the
Respondent at
Bundle 62, are destructive of his version that he
would not sign a fixed term contract because he is not a temporary
employee,
Applicant seeks to overcome this difficulty by denying the
signature on the settlement at p 62 is his, notwithstanding that
this
signature appears to be very similar, if not identical with his
purported signature on the following page (63), which handwriting
and signature Applicant initially acknowledged during his testimony
to be his. At page 63, Applicant, in his own handwriting,
unequivocally represents himself to be a temporary employee.
If all this is not sufficient for
Third Respondent to accept that the signature on the Settlement at p
62 belongs to the Applicant,
Applicant himself then addressed a
letter to First Respondent dated 20 July 2007 in which he admits
having signed the Settlement
at p 62 (see bundle p 85). In admitting
signing the Settlement, he also purports to express surprise in the
letter that he was
now being asked to sign a three months contract;
yet clause 2 of the Settlement Agreement records that the Applicant
will be
re-appointed into his former post of Administration clerk
“and will re-occupy his post as a temporary employee as it was
before his termination”. In line with the tactics adopted thus
far, the letter of 20 July 2007 being highly inconvenient
to his
contention that he was a permanent employee, Applicant once again
seeks to deny authorship of the letter and signature
at p 85.
I have little doubt no reliance
whatsoever can be placed on these denials of his signature by the
Applicant and that the Commissioner’s
acceptance that
Applicant signed the Settlement Agreement at p 62 was justified and
indeed was the only conclusion he could reasonably
have come to, as
was his rejection of Applicant’s case that he was employed on
a permanent or indefinite basis and was
not a temp. The Commissioner
was also correct in accepting van Loggerenberg’s testimony
that the letter of 29 January 2005
relied on by applicant to
evidence his appointment on a permanent basis, was not a letter of
appointment at all. It was issued
for statutory purposes in order to
establish his authorisation to handle court processes as required by
law. The Commissioner
was also correct in accepting van
Loggerenberg’s testimony that the 37% service benefits in
Applicant’s pay slip
were those paid to temporary or contract
workers, not permanents.
There are no grounds to review Third
Respondent’s conclusion that Applicant was not a permanent
employee and that he was
not unfairly dismissed following his
persistent refusal to sign the fixed term contract.
I make the following order:
It is ordered that:
The application for the review of the
Third Respondent `s award dated 3 February 2011 in terms of
section
145
of the Act is dismissed.
I make no order as to costs in the
review.
_____________
Marcus, AJ
Acting Judge of the Labour Court
Appearances:
For the Applicant: Adv L. Maunatlala
Instructed by E.S. Makinta Attorneys
For the Third Respondent: Adv N.
Nharmuravate
State Attorney