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[2015] ZALCJHB 18
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Milling Techniks (Pty) Ltd v Maputle NO and Others (JR1760/12) [2015] ZALCJHB 18 (3 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR
1760/12
DATE: 03 FEBRUARY
2015
Not Reportable
In
the matter between:
MILLING
TECHNIKS (PTY)
LTD
...............................................................
Applicant
AND
MOHLALA,
MAPUTLE
N.O
............................................................
First
Respondent
THE COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
............................................
Second
Respondent
MNZANA,
TSHEPO &
ANOTHER
...............................................
Third
Respondent
Date heard: 19
December 2014
Date
delivered: 03 February 2015
JUDGMENT
VAN
DER MERWE AJ
Introduction
[1]
This is a Review Application in which the Applicant seeks the review
and setting aside of the First Respondent's ("the
arbitrator")
arbitration award in terms of
Section 145
of the
Labour Relations Act
66 of 1995
, as amended.
[2]
The matter concerns the termination of limited duration contracts of
employment which, according to the Applicant, constitutes
termination
by agreement. The Applicant submitted that the fact that the
employees' work had come to an end, and as a result,
their contracts
were terminated, does not render such termination a dismissal.
[3]
The Third and Fourth Respondents ("the employees") were
employed by the Applicant on limited duration contracts as
general
workers on a project with the Project name being recorded as N8-8.
The Project address is recorded as being "Kimberly
to
Campbell".
[4]
The Applicant relies in this review application on clause 1.2 of the
limited duration contract which reads as follows:
‘
1.2
No completion date for employment under this contract can be
provided and the EMPLOYEE accepts this condition irrevocably and
agrees to Limited duration employment for an undetermined period
until terminated as set out in clause 8 of this contract -
consequently
the EMPLOYER is not in a position to offer permanent
employment and is able to offer employment of a temporary nature only
for
as long as there is work for which the EMPLOYEE was employed on
this project (the project as per description on the reverse page)
and
may even be for only a portion of the time it takes to complete the
whole project. The Employee shall under no circumstances
have any
expectation of being employed for the full period of the project.’
[5]
A further relevant clause in the limited duration contract is to be
found in clause 1.3 which states the following:
‘
1.3
Should any unforeseen circumstances arise, the EMPLOYER reserves the
right to implement Section 189 of the Labour Relations
Act 1995 (as
amended).’
[6]
The Applicant operates a road construction and civil engineering
business and both the Third and Fourth Respondents were employed
by
the Applicant on 17 January 2015 on this N8-8 project.
[7]
The official start of the project was 4 October 2010 and planned
completion was 3 June 2012.
[8]
On 8 November 2011 the Applicant issued written notices to the
employees in which it stated that:
‘
Due
to the work volumes on the Campbell and Schmidsdrif project (NRA N
008-080-2009-1) decreasing, your services will no longer
be required,
therefore on approximately 30th November 2011, your employment will
end.’
[9]
On termination of their employment the employees referred an unfair
dismissal dispute to the CCMA.
[10]
The employees contended at the CCMA arbitration that their contracts
were prematurely terminated and that other employees were
employed in
their positions. They disagreed with the notice of termination
that stated that work volume had decreased because
other persons were
employed in their positions. The fact that other "new"
persons were employed by the Applicant
was not disputed by the
Applicant. The Applicant's version that was put to the
employees at the arbitration was that the
Applicant had the right in
terms of the contract to do whatever it wanted to including
terminating the employees’ employment
and to employ someone
else instead.
[11]
The Applicant contended at the arbitration that the section between
Schmidsdrift and Campbell was intensive maintenance work
while the
section between Schmidsdrift and Kimberly was that of road
rehabilitation. The project started from Campbell because
the
maintenance work is easier than road rehabilitation. Individuals from
Campbell were employed to render services between Campbell
and
Schmidsdrift. There were approximately 5 kilometres of work due
to be completed on the section and this remaining portion
allegedly
required specialised skills. There was also work left between
Schmidsdrift and Kimberley and this too required
specialised skills.
[12]
The Applicant argued that in terms of the limited duration contract,
the period for which the contract remained is determined
by the
occurrence of a specific event/task and did not depend on a specific
date and as such were not time based but task based.
The Applicant
denied that the employees were dismissed.
[13]
The arbitrator held that if the parties intended to contract for a
portion of the project, they would have done so by stating
the
portion or part in question to which the employees were to be
employed for. It would be unfair to terminate employment on an
unknown portion or one that had not been agreed to in advance.
According to the arbitrator this would encourage arbitrariness
and give the employer an absolute right to dismiss employees even for
unfair reasons. Nothing precluded the Applicant from
stating
the portion in question and the employees agreeing to work such
portion.
[14]
The arbitrator continued to find in paragraph 23 of the award that:
‘
The
N8-8 project still continues and the applicants were employed to
render services in that project. In essence, his testimony
(referring
to the evidence of company) corroborates the applicants' testimony
that work continued in the section in which they
were employed. The
only difference being that as he testified that the work left in that
section required specialised skills.
I cannot agree with his
testimony that he did not know the work that was performed by the
applicants and was not at the site
when the new employees were
engaged to replace the applicant to the same work. Furthermore, the
respondent (referring to the company)
could not advance a reason as
being (sic) decrease in work volumes and still appoint new persons to
do the same work as the applicant
had been doing.’
[15]
With regards to clause 8 of the contact the arbitrator found that
none of the situations listed in clause 8.1 were applicable
in this
termination. The arbitrator added that the wording of clause 8 in
providing for termination for any cause whatsoever was
“too
broad and was capable of abuse by the employer."
[1]
[16]
The arbitrator concluded his award by finding that the Applicant had
dismissed the employees when it terminated their contracts
of
employment on 30 November 2011 and that the termination was
procedurally and substantively unfair. The arbitrator awarded the
employees six months remuneration as compensation.
Review
Proceedings - Incomplete Record
[17]
It is clear from the above introduction that the wording of the
limited duration contract is pivotal to this review.
[18] The Applicant
however failed to place the complete limited duration contracts of
the employees before this court. Only
the first two pages of a
limited duration contract are included in the record as pages 112 and
113. Only clauses 1 to 7.1
of the contract appear on page 113,
upon enquiry by this court, it became clear that page 3 of the
limited duration contract, also
referred to as the "reverse
page", was not included in the record.
It
is clear from a reading of the record and the award that the said
"reverse page" was indeed part of the CCMA proceedings.
[19]
This court is thus presented with an incomplete record of the CCMA
proceedings.
[20]
The missing "reverse page" is also material to the
determination of this review application. Clause 1.2 of
the
limited duration contract (quoted above) refers to clause 8 and the
same clause 1.2 also states that the description of the
project is
contained on the "reverse page" of the contract. In
my view it will not be possible to properly interpret
the relevant
clause on which the Applicant relies being clause 1.2 of the limited
duration contract without the missing "reverse
page".
[21]
Upon enquiry by this court, the Applicant's representative argued
that the Applicant, in it's review application, will not
be relying
on any clauses contained on the reverse page of the contract and
submitted that I can determine this review application
without
considering the reverse page of the contract by merely taking note of
the recordal on page 12 of the record of proceedings
being that
clause 8.1 "says that the employee fully understands the
employee's contract (the project), which is now Camble
Kimberley, uh
with its client may be terminated and or revised, uh but...
(inaudible) from time to time and for any cause whatsoever,
or
terminate through the passing of guy (sic), or the completion of the
scope/part of work."
[22]
This proposition by the Applicant is problematic. The record of
the review application is incomplete. It is true
that
sometimes, in the absence of a complete record, the courts have been
robust in determining the matter on the available information.
But
these instances are limited to where the "irregularity may be so
patent from the award that a record might not be
necessary" or
because there was no "material dispute of fact going to the very
heart of the review."
[2]
[23]
In my view, this review is not an exceptional circumstance and
required a complete copy of the limited duration contract. The
missing "reverse page" clearly described the project as per
1.2 of the contract and it also contained some of the offending
wording that the commissioner relied upon to find that the contract
wording of "termination for any cause whatsoever"
was "too
broad" and being "a termination reason capable of abuse by
the employer."
[3]
[24]
The Applicant was obliged to place a complete record before this
court and in the absence thereof, this court is in no position
to
properly adjudicate the review application before it and the review
application should on this ground alone be dismissed.
[4]
Review
Proceedings
[25]
Notwithstanding the difficulty of being faced with an incomplete
record and if this court was to determine the review application
in a
robust fashion on the available information without the "reverse
page", as suggested by the Applicant's representative,
I in any
event find no merit in the review application.
[26]
The proper test to apply on review in these circumstances is not
whether the award was one which a reasonable decision maker
could
have reached, or whether the award is susceptible to review on the
grounds listed in Section 145(2)(a) of the LRA, but rather
to asses
whether, on the objective facts placed before the arbitrator, the
employees discharged the onus of proving a dismissal.
[5]
[27]
I agree with the
arbitrator
that if the parties intended to contract for a portion of the
project, they would have done so by stating the portion
or part in
question to which the employees were to be employed for. This
would have been a task based limited duration contract
similar to
what was the case in
National
Union of Metalworkers of SA v SA Five Engineering (Pty) Ltd and
Other
s
(2007) 28 ILJ 1290 (LC) where the termination of employment was
linked to a specific event.
[28]
Clause 1.2 of the limited duration contract is drafted in general
terms and, in my view, does not bring about a limited duration
contract of employment for a portion of the project. The
relevant wording reads that "consequently the EMPLOYER is not
in
a position to offer permanent employment and is able to offer
employment of a temporary nature only for as long as there is
work
for which the EMPLOYEE was employed on this project (the project as
per description on the reverse page) and may even be for
only a
portion of the time it takes to complete the whole project."
[29]
Moreover the objective fact that the Applicant employed other
employees after the termination of the employment of the
employees in
this matter and that these "new" employees were employed in
their positions, in my view, confirms that the
Applicant terminated
the relevant employee's employment prematurely.
[30]
It was also submitted by the Applicant's representative that clause
1.3 of the limited duration contract was not applicable
because the
termination of the employees' employment contracts in this instance
was foreseeable and that clause 1.3 of the contract
only applied to
"unforeseen circumstances". If this is indeed correct it
means that the Applicant was from the outset
able to agree with the
employees on the exact portion of the project that would have brought
about the termination of employment
on completion of that portion.
The contract appearing on page 113 of the record does not reflect
such an agreement.
[31]
I was referred to the unreported decision by Fourie AJ in
Maquabayi
Construction and Truck Hire (Pty) Ltd v CCMA and others
JR 102/11 dated 10 October 2013 but I am not persuaded that the facts
of that judgment can be compared with the facts in this review.
The
employees in the
Maquabayi
decision
were in fact employed on limited duration contracts as general
labourers on the portion of roadwork’s in the
Delareyville area
with the extent of their employment dependent on the completion of
certain sections of work. In addition, the
epicentre of that review
related to the question of whether a legitimate expectation on the
part of the employees had been created
after the contract termination
date. That case also dealt with the review of an award where
the arbitrator reinstated the
employees as permanent employees
regardless of the fact that the contracts of employment were clearly
for a limited duration.
Conclusion
[32] In the
circumstances, I make the following order:
32.1
The Applicant's Review Application
is dismissed.
32.2
There is no order as to costs.
G
van der Merwe
Acting Judge of
the Labour Court of South Africa
Appearances:
For the
Applicant: D W Morgan
For
the Respondent: Unopposed
[1]
Paragraph
23 of the CCMA award, record p 119.
[2]
See
Shoprite
Checkers (Pty) Ltd v CCMA
(2002) 23 ILJ 943 (LC) at par 11,
Ram
Hand-to-Hand Couriers v National Bargaining Council for the Road
Freight Industry
C174, 2007 and
Lifecon
Special Health Services (Pty) Ltd v CCMA
et
al
DA 15/02.
[3]
Paragraph
23 of the CCMA award, record p 119.
[4]
See
Metalogic
Engineering and Manufacturing CC v Fernandes and Others
(2002) 10 BLLR 985
(LC).
[5]
See
SA
Rugby Players' Association (SARPA) and Others v SA Rugby (Pty) Ltd
and Others
[2008] ZALAC 3
;
(2008)
9 BLLR 845
(LAC).