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[2014] ZALCCT 41
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Cash Master Services (Pty) Ltd v Goldman NO and Others (C553/2013) [2014] ZALCCT 41 (30 July 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
C553/2013
In
the matter between:
CASH
MASTER SERVICES (PTY)
LTD
Applicant
and
BELLA
GOLDMAN
N.O.
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
Second
Respondent
XOLISA
DYANTI & 17
OTHERS
Third
Respondents
Date
heard: 14 April 2014
Delivered:
30 July 2014
Summary:
Unopposed application for review
JUDGMENT
Rabkin-Naicker
J
[1]
This is an unopposed application to review and set aside an award
under case number WECT5364 – 13 and WECT5459 –
13.
[2]
The applicant had entered into a contract with the South African
Social Security Agency (SASSA) for payment of grants to grant
beneficiaries. The project that was the subject matter of the
contract involved applicant registering and reregistering more than
10 million beneficiaries across the country. The second phase of this
project was finalised during the end of December 2012. The
third
phase was scheduled to take place between 7 January 2013 and 31 March
2013.
[3]
The third respondents were engaged on fixed term contracts linked to
the registration process of all beneficiaries. The third
respondents
referred their disputes to the CCMA after their contracts were not
extended beyond 31st of March 2013. They were of
the view they had a
legitimate expectation for an extension of the contracts.
[4]
The award sought to be reviewed found that the third respondents were
dismissed and that those dismissals were both substantively
and
procedurally unfair. The first respondent (the Commissioner) awarded
each of the third respondents the sum of R 4050.00 –
an amount
equivalent to one month’s salary.
[5]
The third respondents were all employed on fixed term contracts as
registration operators. They had to process the registration
of
social grant beneficiaries. Their contracts ran from 1 April 2012 to
31 March 2013. They were issued with a letter dated 8 March
2013
informing them that their contracts would be terminated in accordance
with their fixed term contracts. The award records that
clause 2.5 of
their contracts of employment provided that: "employment will
not continue after the date of termination of
the contract and that
the employee will have no expectation of his contract being extended
or in any way renewed after that date."
[6]
Clause 2.9 of the staff manual which was incorporated by reference
into the contracts of employment provided that: "there
is
no expectation that a fixed term contract of employment will be
renewed and/or extended. Only the HR Department (in writing)
can
approve a fixed term of contract of employment to be renewed and/or
extended. Please note that verbal promises made by Managers
to staff
that their contracts will be renewed are not binding on the company.”
[7]
The Commissioner records that the applicants claimed that they were
dismissed in that they had an expectation that their contracts
would
be renewed on the same or similar terms, on the basis of an
undertaking by the provincial manager (one Louis Groenling) who
assured them that no one would lose their jobs. They also mentioned
the fact that others who were employed for the first time in
January
2013 were given another contract of employment and the fact that work
still remained to be done. It was conceded by the
company that others
employed after the applicants were given a contract of one month and
then that contract was extended for another
month. At the arbitration
hearing the company was waiting to hear if its contract would be
extended for a further month. These
extensions were in order to “mop
up" any beneficiaries who had not been registered. Each time the
contract was extended
fewer employees were required, and according to
the company, the selection of employees for each contract was
performance-based.
[8]
The Commissioner found as follows after hearing the evidence at the
arbitration:
“
In terms of what
was in the wording of the contract, it is trite that virtually all
fixed term contract state that the employee
will have no expectation
of his/her contract being extended after the date of
termination, hence I cannot place much weight
on that fact alone. The
respondent in its argument relied on the wording of the contract and
that of the staff manual in that argument
but did not lead any
evidence that the applicants were made aware of any staff manual.
Further, despite clause 2.9 of the staff
manual they did not sign
their fixed term contracts at the commencement thereof, which was on
7 January 2013. The contract submitted
in evidence was signed off for
February 2013 by the applicants and on 21 January by the respondent.
The applicants all stated
they were given verbal assurances by Louis Groenling that they would
be employed after 31 March 2013.
The respondent chose not to call
Louis Groenling to dispute this evidence, despite the fact that he is
still employed by the respondent
as Provincial Manager, hence I
accept the applicant's evidence in this regard.
In terms of past
practice, the applicants’ contracts were in the past renewed on
four occasions and thus I find on the evidence
before me that they
could reasonably have assumed that as long as the work was there as
they were informed by Groenling that their
contracts would be
renewed.
The applicants did
receive a letter of termination. However, as per their evidence and
that of respondents own witness, Troy Jaco,
every time a contract
came to an end all fixed term contract employees received a letter of
termination. The applicants had received
letters of termination
before and their contracts had been renewed and as such this letter
would have had no bearing in terms of
their expectation of renewal.
Taking the above factors
into account I am satisfied that the applicants had a reasonable
expectation that they contract of employment,
which ran from seven
January to 31 March 2013 would be renewed on the same or similar
terms. I thus find that the applicants were
dismissed in terms of
section 186 (1) (b) of the LRA.
The next issue I must now
decide is whether their dismissals were fair; that is, were there
valid reasons for not renewing the applicants
contracts? It appears
that the applicants contracts were not renewed based on their
performance and conduct. However, no evidence
was led that the
respondent followed the guidelines set out in schedule 8 (performance
and misconduct) of the LRA when selecting
the employees for the April
2013 contract.
The applicants were not
informed of any performance standard they failed to meet or of any
poor attendance record. It was not denied
that the respondent would
have that information at hand and no evidence of poor performance or
absenteeism compared to that of
employees whose contracts were
renewed was submitted."
[9]
I note that the transcript of the arbitration indeed records that the
evidence of the company's witness was to the effect that
the criteria
used by the company as to whether contracts should be renewed was
based on the attendance of the employees and whether
there were any
complaints against them.
[10]
The alleged grounds of review of the award are that it was not
reasonable, inasmuch as the award failed to take into account
the
evidence and arguments submitted by the company that there was no
legitimate expectation created. It is also submitted in the
founding
affidavit that far too much emphasis was placed by the Commissioner
on the selection criteria used to select employees
who would continue
for a short while in employ of the company. The applicant also
alleges that its representative was interrupted
by the Commissioner
when trying to cross-examine the witnesses that an impression was
created that the Commissioner had already
made a decision that the
dismissals had taken place in accordance with section 186 of the LRA.
These averments concerning interruptions
by the Commissioner were not
pursued in the written submissions before the court.
[11]
In as far as the issue of the alleged failure to take into account
the evidence at the arbitration, the industrial relations
manager of the company states in the founding affidavit that “…
this will all be expanded upon when the record of
the proceedings
becomes available.” She then goes on to say that it will be
argued at the hearing of the application that
the Commissioner
misconstrued the principles applicable to an extension of an
employment contract and that based on the evidence
presented at the
arbitration proceedings there was no legitimate expectation created,
and that it was not competent for the first
respondent to have relied
upon the so-called arbitrary selection of employees who continued in
the employ of the applicant for
short period thereafter.
[12]
It is contended by the company in the founding papers that the
Commissioner reached an unreasonable conclusion; misapplied
her mind;
exceeded her powers; and committed a gross irregularity. I note that
no supplementary affidavit was filed by the applicant
company and
that the founding papers therefore make no reference whatsoever to
the record to substantiate the grounds for review.
The written
submissions on behalf of the company and the argument made before me
take the matter no further, essentially concentrating
on the
reasoning of the Commissioner and suggesting that her understanding
of the law was lacking in find that the third respondents:
“
had an expectation that they would be permanently employed."
Further, it is argued that the Commissioner's finding
that the
dismissals were unfair because no evidence was led about the
performance standards of the employees should not have been
a
relevant consideration.
[13]
In my judgment, the applicant company has failed to make a case for
the review of the award. The award in question sets out
the legal
basis for the enquiry in terms of section 186 (1) (b) of the LRA. The
Commissioner proceeds to apply that law to the
evidence before her
and cogently sets out the reasons for her award. The award stands to
be upheld on the basis of the law on review
applications as set out
in the Supreme Court of Appeal in
Herholdt
[1]
and the Labour Appeal Court,
Goldfields
[2]
judgment. It is an award that is within the bounds of reasonableness.
Further, based on all the facts and circumstances of the
matter, the
awarding of one month’s compensation to the employees was
appropriate and did not amount to a finding that the
third
respondents had a reasonable expectation that their contracts would
be renewed on the same terms.
[14]
I therefore make the following order:
Order
1. The
application to review the award under case numbers WECT5364 –
13 and WECT5459 – 13 is dismissed.
_______________
H. Rabkin-Naicker
Judge of the Labour
Court of South Africa
Appearances:
Applicants:
N/A
Respondent:
Adv W. Hutchinson instructed by Fluxmans Inc
[1]
Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus
Curiae) 2013 (6) SA 224 (SCA)
[2]
Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
and Others; JA 2/2012 4/11/2013