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[2014] ZALCCT 48
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Cash Paymaster Services (Pty) Ltd v Christie NO and Others (C550/2013) [2014] ZALCCT 48 (19 August 2014)
IN THE LABOUR COURT OF
SOUTH AFRICA
(CAPE
TOWN)
CASE
NUMBER: C550/2013
DATE:
19 AUGUST 2014
In
the matter between:
CASH
PAYMASTER SERVICES (PTY) LTD
Applicant
and
SARAH
CHRISTIE
N.O.
First respondent
CCMA
Second
respondent
N
MFENYANA & 24
others
Third and further respondents
J
U D G M E N T
STEENKAMP,
J
:
This
is an application to have an arbitration award reviewed and set
aside. The award arises from a dispute about a dismissal
in the
form of a legitimate expectation of renewal iof a fixed term contract
in terms of section 186(1)(b) of the Labour Relations
Act (Act 66 of
1995). The arbitrator, Sarah Christie, handed down her award on
5 June 2013. She found that the employees,
who are cited as the
third and further respondents in this matter, were dismissed as
defined in section 186(1)(b) and that the
dismissal was unfair. She
ordered the applicant, CPS, to pay each of the employees that
actually appeared at the arbitration compensation
equivalent to six
weeks’ wages.
At
the beginning of the hearing, I granted condonation for the late
filing of the employees’ answering affidavit. I turn to
the
merits.
The
background to the dispute is largely common cause. Cash
Paymaster Services (or CPS) has been awarded the tender to pay
out
social grants on behalf of the South African Social Security Agency,
SASSA. The individual employees were employed on
fixed term
contracts and it is common cause that the project for which they were
employed was coming to an end in the course of
2013. It is further
common cause that the contracts had been rolled over before.
The contract on which they were employed
at the time was due to come
to an end at the end of March 2013. However, it is further
common cause that about a third of
the employees employed on those
contracts were retained after the end of March. The remaining
employees, or at least the
employees that appeared at arbitration,
argued that they had a legitimate expectation of renewal.
That
is of course addressed in section 186(1)(b) that reads as follows:
“
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”.
Two
questions arise in disputes of this nature. The first is
whether there was a dismissal as defined in the section; and
secondly, if there was such a dismissal, whether the dismissal was
fair. As Mr
Pretorius
for the applicant quite rightly pointed out, it is by now settled law
that in questions of the first nature, i.e. whether there
was a
dismissal, the question goes to jurisdiction and therefore on review
the reasonableness test set out in
Sidumo
[1]
does not apply. That much was held by the Labour Appeal Court
in
SARPA
v South African Rugby (Pty) Ltd
(2008) 29
ILJ
2218 (LAC) and has been confirmed in a number of cases of this Court
since. Should the Court find that there was a dismissal, the
second
question on review, i.e. whether the arbitrator’s finding that
the dismissal was unfair and the compensation that
she awarded, is
then to be decided on the reasonableness test.
I
turn then to the first question, i.e. whether the arbitrator
correctly held that the employees had formed a reasonable expectation
of renewal and therefore that the failure to renew amounted to a
dismissal. In this regard the Court in
SA
Rugby
[2]
described the test in the following terms:
“
The
test is that the employee must establish:
(a)
That he had subjectively an expectation
that the employer would renew the fixed term contract in question on
the same or similar
terms; and
(b)
that the expectation was reasonable; and
(c)
that the employer did not renew it or
offered to renew it on less favourable terms.”
In
the case before me it is common cause that the employer did not renew
the contracts. The question is then whether the employees
subjectively had an expectation of renewal and if they did, whether
such expectation was reasonable. The arbitrator addressed
these
questions, albeit fairly briefly. She found that it is common
cause that there was a practice of rolling over the contracts.
That is one element that led to the employees subjectively expecting
a further renewal after March 2013. The further factor taken
into
account is that about one third of their colleagues’ contracts
were in fact renewed. It is so, as Mr
Pretorius
submitted, that there is perhaps a fading of the lines between the
question of whether there was a reasonable expectation and the
question of the procedure followed by the employer. That is
because the arbitrator found that the selective failure to extend
was
unfair. However, the arbitrator weighed up the factors that I
have outlined as against the factors that militate against
an
expectation of renewal. For example, she rejected the workers’
argument that because they had been employed longer than
the rest,
they should have been selected.
On
balance I am persuaded that the finding of the arbitrator that the
workers did form an expectation of renewal and that that expectation
was a reasonable one, was the correct finding on the evidence before
her. I am not persuaded that that finding is reviewable.
That
brings me then to the second question, i.e. whether the dismissal was
unfair. In this regard the arbitrator found that
the selection
criteria ostensibly used by the employer were not rational.
The
employer said that it used performance as selection criterion.
However, the arbitrator found that there was no evidence
before her
that the employer did in fact use that criterion or, if it did, that
it explained or discussed that criterion with the
workers.
Therefore the dismissal was also unfair. That conclusion seems
to me to fall within a band of reasonable conclusions
and is
therefore also not reviewable.
There
is a further aspect, and that is that CPS argued that the CCMA did
not have jurisdiction to make such a finding because if
there was a
dismissal, it was in fact based on operational requirements; that
more than one employee had been dismissed for operational
requirements; and therefore the CCMA did not have jurisdiction.
There
are two answers to that argument. The first is that the
employer never raised it at arbitration. The second is
that the
case on which it relies, namely
Mkhiva v
BCS Joint Venture
[1997] 8 BLLR 1014
(LC) is distinguishable.
In
that case the dispute came before the court as a dispute about
dismissal for operational requirements in terms of section 189
of the
LRA. Zondo AJ, as he then was, pointed out at 1015i-j:
“
The
applicant’s claim as embodied in his statement of claim is that
the termination of his contract for employment was an
unfair
retrenchment as well as an automatically unfair dismissal.”
The case before me is a
review of a dispute that was clearly referred to and decided by the
CCMA as a dispute in terms of section
186(1)(b) of the LRA. As
Nugent JA pointed out in
Makhanya v University of Zululand
2010 (1) SA 62
(SCA) at paragraphs 71 and 95, the question of
jurisdiction must not be confused with the merits. A court or
another forum
such as the CCMA must decide the case that is pleaded.
Whether it is a good or a bad claim is a different question.
The case that was pleaded and that was decided upon in the dispute
before me is one squarely based on section 186(1)(b) and not
section
189.
That
was never the case for either of the parties. The failure of
the arbitrator to decide it on the basis of a section 189
claim is
therefore also not reviewable.
Lastly, with regard to
the relief granted, although Mr
Pretorius
did not specifically
take issue with that outcome, I will simply add that it appears to me
that the award of compensation amounting
to six weeks’ wages is
not an unreasonable one.
As
the employer pointed out, if the employees did have an expectation of
renewal, it could only have been for the renewal of a contract
for
another three months. To my mind, even if the arbitrator had
awarded compensation amounting to three months, it would
still have
fallen within a range of reasonable outcomes. I am therefore
satisfied that both the finding and the outcome are
reasonable.
With
regard to costs, both parties asked that costs should follow the
result and I can see no reason to differ.
THE
APPLICATION FOR REVIEW IS THEREFORE DISMISSED WITH COSTS.
___________________________
STEENKAMP,
J
APPEARANCES
APPLICANT:
Danie Pretorius of Fluxmans Inc.
THIRD
RESPONDENT: Jason Whyte of
Cheadle
Thompson & Haysom.
[1]
Sidumo
v Rustenburg Platinum Mines Ltd
(2007) 28
ILJ
2405
(CC).
[2]
SA
Rugby (Pty) Ltd v CCMA & ors
[2006]
1 BLLR 27
(LC).