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[2014] ZALCCT 72
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Arendse v Barloworld Ltd (C30/2011) [2014] ZALCCT 72 (19 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 30/2011
Not
reportable
In
the matter between:
ALBERT
ARENDSE
Applicant
and
BARLOWORLD
LTD
First
Respondent
Heard
:
12-13
May 2014
Delivered
:
19
May 2014
Summary:
Dismissal
- expectation of renewal of fixed term contract – LRA s
186(1)(b) – expectation not reasonable
– dismissal not
proven.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
employee’s contract was not renewed after it had previously
been renewed for ten consecutive months. Was he dismissed
as
contemplated in s 186(1)(b) of the LRA?
[1]
Background facts
[2] The
respondent, Barloworld, provides a trucking service for fast moving
consumer goods and at all material
times, its customer has been PPC.
It delivered bags of cement to PPC. The applicant was employed as a
general worker – a
crew member loading and off-loading bags of
cement -- on the following fixed term contracts:
· 26
January 2009 to 28 February 2009
· 1
March 2009 to 31 March 2009
· 1
April 2009 to 30 April 2009
· 1
May 2009 to 31 May 2009
· 1
June 2009 to 30 June 2009
· 1
July 2009 to 31 July 2009
· 1
August 2009 to 31 August 2009
· 1
September 2009 to 30 September 2009
· 1
October 2009 to 31 October 2009
[3] When
his contract expired on 31 October 2009, it was not renewed. As from
1 November 2009, the services previously
provided by Barloworld were
provided by owner drivers previously employed as truck drivers by
Barloworld. These owner drivers employed
their own crew members.
Legal issues
[4] The
employee was previously represented by Cheadle Thompson & Haysom
attorneys. They withdrew a week before
the trial and the employee
chose to represent himself. Nevertheless, the legal issues were spelt
out in a pre-trial minute signed
by both parties’ legal
representatives at the time.
[5]
The
parties agree that s 197 of the LRA does not apply to the situation
where the services that were previously provided by Barloworld
are
now provided by the owner drivers. The employee does not allege that
his contract of employment should have been transferred
to an owner
driver. Instead, he says that he was dismissed in terms of s
186(1)(b) of the LRA and that the dismissal was unfair.
He seeks
reinstatement. That section reads:
[2]
“’
Dismissal’
means that –
...
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;”.
[6] The
employee also says that he continued working for Barloworld for four
days from 1-4 November 2009. He seeks
an order in the alternative
that he was “tacitly re-employed” on an indefinite basis.
Evaluation of evidence
[7] The
employee presented his own evidence. Vanessa Thompson (née
Paulse), a fleet controller, and Robyn
Ann Paul, the depot manager
for Kraaifontein, testified for Barloworld. Much of the evidence was
common cause, except for the assurances
the employee alleges he
received that he would remain in employment; and the question whether
he continued working for four days
in November.
[8] Before
he started working for Barloworld, Arendse was employed in a
temporary capacity as a relief crewman
for approximately four years.
[9] Accordingly,
he was not a newcomer to temporary employment. He agreed that his
services were used on an
ad hoc
basis at that time. During the
trial proceedings, it emerged that Mr Arendse was articulate and
astute. He did not fit the description
of a general worker. With
better opportunities and in a more equal society, he may well have
been able to pursue a better education
and more satisfactory
employment. As it turned out, he was responsible for recruiting four
other temporary employees as crew members
for Barloworld. He signed
nine fixed term contracts, all of which provided that there would be
no renewal unless reduced to writing.
Of course, the very fact that
the contract was renewed nine times may lead to an inference that he
formed a reasonable expectation
that Barloworld would continue doing
so; but the fixed term contracts in this dispute must be seen in
context. It emerged from
the evidence that there was a legitimate
reason for using this unsatisfactory method of employment.
[10] The
respondent’s witnesses explained the reason why it used fixed
term contracts from January 2009.
The specific service rendered by
the respondent (the pocket cement route) was going to be outsourced
to owner drivers in terms
of a BEE initiative. Subcontractors were
used as an interim measure during the handover period. From the date
that the applicant
and his colleagues were engaged, it was envisaged
that the respondent would divest itself of drivers, crewmen and its
own trucks
and a point would be reached in the near future whereby
the respondent would dispense with employing crewmen such as the
applicant.
Mr Arendse knew this.
[11] According
to Mr Arendse, the depot manager, Mr Amir Sallie (“Sallie”),
assured him and his colleagues
in the first month of their employment
that their positions would be made permanent. This allegation flies
in the face of the applicant’s
evidence that several meetings
were held with Sallie where various complaints relating to working
conditions were raised with him,
but to no avail. If anything, Sallie
insisted that they continue to sign fixed term contracts. He
resolutely set himself against
making their employment permanent.
Even when the applicant’s services came to an end, he made no
attempt to approach Sallie
to obtain a renewal of his fixed term
contract or alternatively to be appointed to a permanent position.
[12] Mr
Arendse also claimed that Ms Vanessa Thompson (“Thompson”),
an administrative controller employed
in a clerical position at the
time, informed him that his employment would be secure. Thompson
testified that she had no authority
to make any promises and stated
that she may have asked one of the owner drivers, Mr Gareth O’
Ryan (“O’Ryan”)
of GRO Transport if he could offer
the applicant employment. As it transpired, none of the owner drivers
who took over on 1 November
2009 engaged any of the temporary crew
members. Whatever promises Thompson may or may not have made, they
related to employment
with a third party and not with the respondent
itself.
[13] Throughout
his evidence, the applicant was fully alive to the concept of owner
drivers. He had interacted
with several of them before he took up
employment with the respondent. During his tenure with the
respondent, he gained an accurate
insight into the process that was
unfolding. This is evident from the instructions that he gave to his
attorney as reflected in
his amended statement of case. For the first
three months of his employment, his services were utilized on
Barloworld’s own
trucks. Thereafter, even though he was still
employed by Barloworld, he provided services to a sub-contractor,
Singh’s Transport
(“Singh’s”). He knew that
GRO Transport replaced Singh’s as from 1 November 2009. It
appears that he formed
an expectation to continue to work for
Barloworld provided that Singh’s continued to offer a service
to Barloworld.
[14] The
termination of Singh’s services immediately created a dilemma
for the employee because the owner
drivers were finally in a position
to take over that service. He then claimed in the alternative that
his contract had been tacitly
renewed because he continued to work
for the respondent during the period of 1 to 4 November 2009. In a
letter that he wrote to
the Court on 15 June 2011, before his
attorneys delivered an amended statement of claim, he stated the
following:
‘
I was placed on a
contractor’s (Jubie Singh Transport of Ravensmead) truck. I was
employed till his contract was expired.
The contract was given to
Gerrit Orion [actually Gerard O’Ryan] from Barloworld. He
decided that he will employ his own workers’.
[15] This
raises the question what service the employee could have rendered
during the period of 1 to 4 November
2009 where on his own version he
did not assist GRO Transport with any deliveries. He claimed that he
assisted one of Barloworld’s
drivers, Reuben Claassen. Ms Robyn
Paul (“Paul”) led evidence that during that period, the
applicant was not recorded
as a crew member of any vehicle on the log
sheets. At the request of the Court, she provided copies of the trip
sheets for that
period to the Court. Arendse’s name does not
appear on any of them, while Claassen’s does. She pointed out
that during
that period Reuben Claassen did not require the
assistance of a crew member as the load that he carried was a
palletized load.
In addition, when Claassen went to Penny Pinchers on
3 November 2009 he did not require the services of a crewman. The
same situation
was applicable to either 2 or 4 November 2009. As it
transpired, 1 November 2009 was a Sunday and no trips were
undertaken.
[16] It
was common cause that the applicant was not paid for working any days
after 31 October 2009 and that he
did not demand payment either. It
was also common cause that no one from management either asked the
applicant to work over that
period or were in fact aware that he was
carrying out any duties. Even if the applicant did accompany Reuben
to Penny Pinchers
on 3 November 2009, he was not authorised by the
respondent to do so. On a balance of probabilities, Barloworld did
not ask the
employee to work in November 2009.
[17] When
Arendse was asked in cross-examination what work he would have
performed if his contract was extended
for an additional period of a
month, he was at a loss to explain what he would have done. He could
also not allude to any specific
permanent position he could have been
appointed to. His reference to the wash bay did not assist him
because that service had been
outsourced before he started working
for the respondent.
[18] In
his discussion on what constitutes a reasonable expectation within
the meaning of s 186(1)(b), John Grogan
in his book “
Dismissal”
states the following:
‘
The critical issue
when determining when this form of dismissal has occurred is whether
the employee’s claim that he or she
expected the contract to be
renewed was reasonable in the objective sense, ie whether the
circumstances were such that any reasonable
employee would in the
circumstances have expected the contract to be renewed on the same or
similar terms’.
[3]
[19] On
a full conspectus of the evidence, the employee has not been able to
establish that he had a reasonable
expectation that his fixed term
contract would be renewed. In terms of the prevailing jurisprudence,
it is unlikely that an expectation
can relate to permanent employment
as opposed to the extension of a fixed term contract. One of the
proposed amendments to the
LRA is to cater for a reasonable
expectation to permanent employment which demonstrates that the
current position is at odds with
the proposed amendment. Furthermore,
since the employee had to sign each and every fixed term contract, to
his knowledge it would
have been most unlikely that he would have
been offered a permanent position without having to sign a new
contract.
Conclusion
[20] It
follows that the employee has not discharged the onus to show that he
was dismissed. The application must
fail.
[21] With
regard to costs, I take into account that the employee eventually had
to represent himself. He is 50
years old and now unemployed. He has
cancer of the voicebox. He is living in his aged parents’ back
yard in a “hokkie”.
In law and fairness, I do not think
that an order for him to pay the company’s costs is
appropriate.
Order
The
application is dismissed.
Steenkamp
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In
person.
RESPONDENT: W
J Hutchinson, Instructed by Fluxmans, Johannesburg.
[1]
Labour
Relations Act 66 of 1995
.
[2]
At
the time of this dispute, the subsection has not been amended. The
proposed amendment reads as follows:
“
an employee
employed in terms of a fixed term contract of employment reasonably
expected the employer—
(i) 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; or
(ii) to
retain the
employee
in employment on an indefinite basis but
otherwise on the same or similar terms as the fixed term contract,
but the employer offered
to retain the
employee
on less
favourable terms, or did not offer to retain the
employee
;
(Proposed
amendment: Para. (
b
) to be substituted by
s. 30
(
a
) of
Bill No. 16D of 2012.)
[3]
At 43.