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[2014] ZALCCT 14
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Booley and Others v ANC and Another (C477.10) [2014] ZALCCT 14 (15 April 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not Reportable
Case
no: C477/2010
In
the matter between:
Soraya
Booley
............................................................................................................
First
Applicant
Eleanor
Momberg
................................................................................................
Second Applicant
Marion
Carolus
.......................................................................................................
Third
Applicant
Mustapha
Isaacs
...................................................................................................
Fourth
Applicant
Heidi
Williams
.......................................................................................................
Fifth Applicant
Hamish
Arries
.........................................................................................................
Sixth
Applicant
Nomhiki
Sigaqa
..................................................................................................
Seventh
Applicant
Dilshaad
Allie
.......................................................................................................
Eighth
Applicant
Moegsien
Ismail
.....................................................................................................
Ninth
Applicant
Bonnie
Croeser
.......................................................................................................
Tenth
Applicant
Ferial
Alexander
...............................................................................................
Eleventh
Applicant
Vanessa
van
Rooy
..............................................................................................
Twelfth Applicant
Neliswa
Mgwayi
.............................................................................................
Thirteenth
Applicant
Elhana
Jackson
.............................................................................................
Fourteenth Applicant
Faith
Landu
......................................................................................................
Fifteenth
Applicant
and
ANC
......................................................................................................................
First
Respondent
ANC
CAUCUS
...............................................................................................
Second
Respondent
Dates
heard: 10-14/6,20/6 and 13 /12/2013
Date
delivered: 15 April 2014
Summary:
Claim for reinstatement or compensation for unfair retrenchment
JUDGMENT
Rabkin-Naicker
J
[1]
When comrades employ comrades, labour relations between them take on
a distinct character and form. However, in substance, such
relations
are still subject to employment law and disputes that arise in this
context have to be adjudicated in the same way as
do others.
[2]
The applicants, ANC members, were all employed to provide services to
the ANC's Parliamentary Caucus well before the 2009 general
election.
They were employed on five year fixed term contracts which were due
to expire 30 days after the commencement of polling
for the next
election of Parliament to expire on or about 31 May 2009.
[3]
It is their case that they reasonably expected their employer to
renew their fixed term contracts for a further five years after
the
2009 election on the same or similar terms. The basis of such an
expectation as recorded in their statement of claim, being
first that
their employer had since 1994 adopted the practice of renewing the
five year fixed term contracts of its employees in
Parliament after
each election. And secondly, that on least two occasions prior to the
2009 general election, the ANC's then chief
whip, Mr N Booi, assured
employees that
rumours
that their contracts
would not be renewed were incorrect and that their contracts would be
renewed for a further five years. The
employees were requested to and
did campaign on behalf of the ANC on the basis that their continued
employment was secure.
[4]
Shortly before 31 May 2009 after the election, the applicants were
given letters which read as follows:
“
Expiration
Of A Fixed Employment Contract And An Offer Of Six Months Fixed
Employment Contract "
Dear
Cde……
This
letter is to inform you of an expiration of your fixed employment
contract on 31 May 2009 between you and ANC Parliamentary
Caucus for
the third term of Parliament which started on June 2004 to May 2009.
It
is with pleasure that I offer you a fixed term appointment as……….
as from the 1 June 2009 to 30th of November
2009. You will work in
Parliament Cape Town… ……..
The
offer is subject to the following conditions:
*your
written acceptance within three (3) days of receipt of the letter of
offer of employment.
*Successful
completion of security clearance (where applicable).
*Signing
of a fixed contract of employment and performance agreement.
*Acceptance
and compliance with other conditions of service applicable to all
staff of the ANC Parliamentary Caucus.
After
the inevitable restructuring process, posts will be advertised and
you're more than welcome to apply.…"
[5]
The applicants also learnt in about May 2009 that their employer
needed to retrench staff as a result of having obtained a reduced
majority in the general election, which would have a negative impact
on its available funds. The applicants made it clear that
they were
aggrieved by the failure to renew their employment for a further
five-year term and threatened to have a public demonstration
at the
opening of the new parliament. They claim that President Jacob Zuma
addressed the Parliamentary staff of the ANC Caucus
and gave them an
assurance that their positions were secure and that none of them
would lose their jobs.
[6]
It is the applicants’ case that they only signed the six-month
contracts to avoid being unemployed from 1 June 2009, and
in the
reasonable expectation that these contracts would in due course be
renewed for the balance of the five year term. The six-month
contracts which they signed contained a clause which was headed
"whole agreement" and read as follows:
“
This
employment contract contains the entire agreement between the
employer and the employee with regard to all that is contained
or
referred to in this employment contract. There are no other terms,
conditions, undertakings, promises or warranties of any nature
whatsoever regulating the parties relationship in regard to the
matters referred to or contained in this employment contract, unless
reduced into writing and signed by both parties. The parties
acknowledge that there are no collateral agreements between the
parties
in regard to the matters contained in or referred to in this
employment contract or any undertakings, assurances, promises or
inducement
of any nature whatsoever."
[7]
In response, it is pleaded that the ANC Parliamentary Caucus is
given allowances from Parliament to fund the constituency work
of
members of Parliament. This includes salaries. At all material times,
the applicants were aware that the amounts of funds provided
by
Parliament were dependent on the numbers of members per party after
each election in terms of the policy on political allowances.
It
therefore pleads that none of the applicants could have had any
expectation of a renewal beyond the fixed period. The applicants
contracts therefore terminated by effluxion of time at the end of May
2009 and given that each of the applicants was provided with
notice
to this effect, they could not have reasonably expected renewal on
the same or similar terms.
[8]
It is stated on the half of the respondents that the applicants knew
or ought to have known that the only purpose for the limited
six
months duration contract was to grant the ANC caucus an opportunity
to follow fair recruitment processes and to avoid the collapse
of its
administration. The applicants participated in the recruitment
process with the consent of their union NEHAWU. It is further
respondent's case that by participating in the recruitment process
the applicants knew that they would be competing for posts,
and that
none of them would have a guarantee or expectation of renewal. On the
respondent's case therefore there was no dismissal
and this court
lacks jurisdiction to hear the matter.
Evaluation
[9]
The issue that the court has to first determine is whether dismissals
in fact took place or whether the termination of the six-month
fixed
term contracts can be labeled as a termination due to the
effluxion of time. I will first consider the applicable law
in
respect of the doctrine of "reasonable expectation of renewal"
in our labour law.
[10]
In
De
Milander v Member of the Executive Council for the Department of
Finance: Eastern Cape & others
[1]
the Labour Appeal Court per Zondi J summarised the law as follows:
“
[25]
The appellant's case is founded upon s 186(1)(b) of the LRA and that
being so, she had to provide facts which, objectively
considered,
would bring her case within the ambit of that section. This section
provides as follows:
'186
Meaning of dismissal and unfair labour practice
(1)
"Dismissal" means that — . . . .
(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.'
[26]
In
SA Rugby Players Association
at para 44 it was held that
the onus is on an employee to establish the existence of a reasonable
or legitimate expectation. The
test whether or not an employee has
discharged the onus is objective, namely, whether a reasonable
employee would, in the circumstances
prevailing at the time, have
expected the employer to renew his or her fixed-term contract on the
same or similar conditions. But
once it is found that there had been
a dismissal as contemplated in s 186(1)(b), the onus shifts to the
employer to justify its
fairness.
[27]
In
Joseph v University of Limpopo & others
(2011) 32 ILJ
2085 (LAC);
[2011] 12 BLLR 1166
(LAC) this court pointed out that, in
deciding whether or not an employee has established that he had a
reasonable or legitimate
expectation that the contract would be
renewed, the court will have regard inter alia to previous regular
renewals of his contract
of employment, terms of the contract and the
nature of business but it pointed out that the list was not
exhaustive. This means
that where there is evidence of regular
renewal of the employee's contract of employment in the past by the
employer the court
will most likely consider it as a strong
indication that the parties intended to extend their employment
contractual relationship……
[29] In order to
assess the correctness of Mr. Le Roux's contention that the appellant
had a reasonable expectation that her contract
would be renewed and
that the MEC's failure to renew it constituted a dismissal,
it is
first necessary to determine whether she in fact expected her
contract to be renewed, which is the subjective element. Secondly,
if
she did have such an expectation, whether taking into account all the
facts, that expectation was reasonable, which is the objective
element.
” (my emphasis)
[11]
Taking the above approach, I note that it is the applicants’
claim that expectations were strengthened amongst others,
by the
mandating of a delegation from the ANC's head office led by Mr. U.
Abrahamse, to facilitate a solution to the dissatisfaction
which had
arisen regarding the failure to renew the employees contract for the
expected period. The amended statement of claim
records this amongst
others in paragraph 14 and 15 as follows:
“
14.
After meeting with representatives of the affected parties, the
delegation issued an initial report, dated 4 June 2009, to the
respondent's chief whip and a report dated 5 June 2009 to the
secretary general.…
15.
On or about 12 June Abrahamse met with shop stewards representing the
affected employees and, on behalf of the respondent, sought
their
agreement to the content of the initial report of 4 June 2009 to the
Chief Whip. Aspects agreed to with the shop stewards
included the
following:
15.1
the parties would as far as possible avoid the possibility of
rendering staff redundant but where this could not be avoided,
alternative employment would be identified for redundant staff
members.
15.2
operational staff (administrative assistants and secretaries to MPs,
PCO staff and researchers) would be "ring fenced"
during
the process. Should a situation arise where any staff were not
offered new contracts of employment, operational staff would
be the
last category of staff to be affected.
15.3
in the event that some staff members were not offered new contracts
of employment, the following interventions would be made
to prevent
them from being rendered unemployed:
15.3.1
placement in other ANC structures;
15.3.2
placement in the public's service and/or newly established Ministry;
15.3.3:
training intervention for those who needed to be re-skilled.
15.4:
the proposed engagement process would not be driven by the current
management but would be driven directly by the chief whip,
with the
assistance of the respondent's head office.”
[2]
[12]
Their statement of claim sets out how the applicants applied for the
posts in the new structure as instructed, but were not
reappointed
and were instead informed on or about 13 November 2009 that their
employment had expired, though they would be paid
for December 2009.
The following statement is made in paragraph 21 of the claim:
“
21.
The applicants had reasonably believed that their employment would be
renewed for the balance of the applicable five-year period.
The
respondent's failure to renew their contracts constituted a
‘dismissal’ in terms of section 186 (1) (b) of the
Labour
Relations Act.”
[13]
It is therefore applicants’ pleaded version that their shop
stewards agreed to the so-called ‘initial report’
as set
out above. Clause 15 of the Statement of Claim cannot be read other
than to reflect that restructuring of the caucus staff
was going to
take place, and that the parties would as far as possible avoid the
possibility of rendering the staff without employment.
The issue of
‘ring fencing’ and deployment to other structures and
departments of government are all reliant on the
supposition that
certain of the ANC caucus staff were at risk of losing their
employment. The content of applicants’ own
pleaded case belies
their subjective beliefs that they would not risk losing their jobs.
[14]
I am however, for the purposes of deciding this point in limine,
prepared to accept that given the close relationship between
Nehawu
and the ANC and the fact that the applicants and their employer all
owed allegiance to the ANC, that applicants’ genuinely
held a
subjective belief that matters would be resolved and they would not
be ‘put out to dry’ after years of service
to their own
party. However, what remains to be considered is whether this
subjective belief was objectively reasonable. It was
submitted on
behalf of the ANC Caucus that there were several facts and events
which objectively could not have rendered the expectation
of the
applicants’ reasonable. These included:
14.1
That their contracts before 2003 were all linked to the lifetime of
Parliament;
14.2
That a letter was written to the applicants on the 13
th
May
2004 from the office of the Chief Whip. The letter inter alia read “
it should be noted that these contracts are not roll
over contracts
and do not create an expectation of further employment at the end of
this contract period."
14.3
The challenge from the new political party on the scene for the 2009
elections COPE to the ANC's majority was a further objective
fact
that negated any reasonable expectation of renewal.
14.4
The letter dated 31 March 2009 in which the Chief Whip wrote to
employees indicating that their contracts would terminate effective
31 May 2009. Although some evidence in court on behalf of the
applicants suggested that very few of them had received this letter
at the time it was sent to them, non-receipt of the letter is not
pleaded.
14.5
The dissolution of the ANC caucus in April 2009 when Parliament
dissolved in terms of the provisions of the Constitution;
14.6
The loss of seats by the ANC and the resultant drop in funding for
posts mitigated against any reasonable expectation of renewal
when
the ANC returned a reduced majority with a reduction of some 33 MPs.
14.7
The 22 May 2009 letter which informed all the applicants that their
contracts would not be renewed at the expiry of the fixed
term ending
end of May 2009. In this letter they were offered fixed term
appointments from one June 2009 to 30th of November 2009
and it was
also indicated to them that after an inevitable restructuring
process, posts would be advertised and that they would
be welcome to
apply.
14.8
The signing by the applicants of the six month contract with its
clause 14 headed "whole contract" the content of
which is
referred to above. Although there was evidence from Booley that she
signed the contract under duress, the legal requirements
of duress
were not shown. At that point the applicants did not claim that they
had been dismissed.( It was acknowledged by Mr.
Freund for the
applicants that had they claimed an expectation of renewal for five
years at that stage they would have had a sound
legal case but then
would have faced immediate unemployment).
14.9
The conduct of the applicants in applying for jobs in the new
structure and the conduct of the union in acting as observers
to the
application process.
[15]
Weighing the conspectus of facts and circumstances referred to above,
including the conduct of the applicants themselves,
I find that any
subjective expectation held by the applicants cannot be considered as
objectively reasonable. Their testimony that
certain undertakings
were made to them that their jobs would be safe, even if accepted as
undisputed, can still not disturb this
finding. By the time of the 12
June 2009 meeting at which their shop stewards agreed to the ‘initial
report’, it was
their union representative’s
understanding, as pleaded, that jobs may be lost and that the caucus
was to be restructured.
[16]
The applicants could have referred an unfair dismissal dispute to the
CCMA before signing the six month contracts but they
elected not to.
Taking into consideration the terms of the contracts they signed, and
the facts and circumstances listed above
on which I have determined
that there was no reasonable objective basis for their expectation of
renewal of their contracts, I
find that as of the 30 November 2009,
the applicants’ employment terminated due to the expiration of
their six month fixed
term contracts. No dismissals took place.
[17]
In the circumstances, I make the following order in the knowledge
that the applicant’s case was funded by NEHAWU and
that the
union and the Respondents have an ongoing relationship.
Order
:
1.
The applicants’ claim is dismissed for want of jurisdiction
2.
There is no order as to costs.
Rabkin-Naicker
J
Judge
of the Labour Court of South Africa
Appearances:
For the Applicants :
Adv AJ Freund SC with Adv Graham Leslie instructed by Vernon Seymour
Attorneys
For
the Respondents: Advocate F Boda instructed by Ntanga Nkuhlu Inc
Attorneys
[1]
(2013) 34 ILJ 1427 (LAC)
[2]
the
applicant's case before court was that the ANC was the employer of
the applicants although they did amend their citation of
the
respondents to include the ANC caucus as second respondent.