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[2015] ZALCJHB 133
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Msiza and Another v South African Local Government Bargaining Council and Others (JR1263/12) [2015] ZALCJHB 133 (22 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
Reportable
CASE
NO: JR 1263/12
In
the matter between:
JAN
CHARLY
MSIZA
....................................................................................................
First
Applicant
BOY
MGIJI
SKOSANA
..............................................................................................
Second
Applicant
and
THE
SOUTH AFRICAN LOCAL
GOVERNMENT
................................................
First
Respondent
BARAGAINING
COUNCIL
COMMISSIONER
THOMAS
NTIMBANA
..........................................................
Second
Respondent
THEMBISILE
HANI LOCAL
MUNICIPALITY
...................................................
Third
Respondent
Heard
: 16 January 2015.
Judgment
: 22 April 2015.
Summary
: A termination of a fixed-term contract of employment does not
constitute a dismissal in circumstances where the employee
has waived
his right arising from a collective agreement to cancel such a
fixed-term agreement and conclude a permanent employment
contract.
JUDGMENT
MTHOMBENI
AJ
Introduction
[1]
This is an application for the reviewing and setting aside of an
arbitration award (“the award”),dated 8 March 2012,made
by the second respondent and issued under the auspices of the first
respondent. The application is opposed.
[2]
The second respondent concluded that the applicants had not been
dismissed by the third respondent, but their fixed-term contracts
had
expired.
Condonation
[3]
The applicants made an application for condonation of the late filing
of this application. The application is unopposed.
[4]
In this regard, the applicants made the following submissions:
4.1 The applicants
received the award on 22 March 2012. The following day, they
telephonically contacted Mr Croucamp, their legal
representative, to
set up a meeting to consult on the matter. A meeting was scheduled
for 13 April 2012, being the first date on
which Mr Croucamp would be
available.
4.2 On 13 April
2012, the applicants submitted a bundle of documents, which formed
part of the arbitration hearing, to Mr Croucamp
to enable him to
advise them on their prospects on the matter. Mr Croucamp undertook
to familiarise himself with the matter and
revert to them within a
week.
4.3 On 26 April
2012, the applicants had another meeting with Mr Croucamp wherein he
advised them that they had very strong prospects
of succeeding in
this application. Thereupon, the applicants instructed Mr Croucamp to
prepare the review application and represent
them when such
application is heard.
4.4 On 24 May 2012,
the applicants called Mr Croucamp’s offices enquiring when the
documents would be ready for signature.
Mr Croucamp was surprised
that the applicants had not yet signed the documents, for he was
under the impression that they had already
been served on the
respondents and filed with this Court. Upon investigation, Mr
Croucamp discovered that Anandi Grobler, his typist
had failed to
arrange with the applicants to sign their affidavits.
4.5 Mr Croucamp had
granted Ms Grobler an early maternity leave, due to complications
with her pregnancy. Before her departure,
he had been under the
impression that she had made arrangements for the applicants to sign
the affidavits and had also served and
filed the review application.
Grounds
of review
[5]
The applicant seeks to review the award on the following grounds:
5.1 The second
respondent disregarded material and relevant evidence;
5.2 The second
respondent failed to properly asses the evidence put before him;
5.3 The second
respondent failed to apply the rules of evidence;
5.4 The second
respondent committed a gross irregularity in finding that applicants
were not unfairly dismissed; and
5.5 The second
respondent, notwithstanding his ruling that the parties submit their
closing statements on 15 March 2012, proceeded
and made his award on
8 March 2012.
Background
[6]
On 1 April 2000, the KwaMhlanga Transitional Local Council employed
the first applicant and second applicant as Chief Executive
Officer
and Senior Administration Officer, respectively.
[7]
Following a merger between KwaMhlanga Local Transitional Council and
Mkobola Transitional Council, the third respondent was
established.
On 9 November 2005, the third respondents engaged the applicants as
Assistant Managers on an annual salary of R 145 336.00.
[8]
During 2006, the third respondent’s council took a resolution
to upgrade the salaries of Assistant Managers to the total
package of
R 330 000.00 per annum. The applicants’ salary levels
were, consequently, upgraded.
[9]
Thereafter, the third respondent and the applicants entered into five
year fixed-term employment contracts.
[10]
On 11 July 2008, the third respondent and the South African Municipal
Workers Union (“SAMWU”) entered into a collective
agreement in terms of which the Assistant Manager positions would be
converted into full time positions and their fixed-term contracts
of
employment be cancelled.
[11]
On 19 November 2008, the Assistant Managers, including the
applicants, in the third respondent’s employ signed an internal
memorandum stating that the collective agreement entered into between
the third respondent and SAMWU was not them, for they had
already
signed employment contracts with the third respondent.
[12]
On 1 May 2011, the third respondent advised the applicants in writing
that their contracts of employment would terminate on
30 July 2011.
[13]
During July 2011, the third respondent extended the applicants’
contracts for a period of two months until 30 September
2011. At the
expiry of the extension, the third respondent also reminded the
applicants of the termination of their contracts of
employment.
[14]
The third respondent advertised the applicant’s positions and
gave the applicants an opportunity to reapply. The applicants
applied. However, the positions were later frozen.
Applicants’
Submissions
[14]
In support of this application, the applicants made the following
submissions:
14.1 The second
respondent ignored the evidence by the applicants that the third
respondent had no authority to present them with
fixed-term contracts
as if they were Section 57 employees.
14.2 The second
respondent disregarded the applicants’ evidence that they
placed in dispute their conditions of employment
and had directed
numerous letters to the management of the third respondent in this
regard.
14.3 The second
respondent disregarded the applicants’ evidence that in terms
of the collective agreement between SAMWU and
the third respondent
the positions of Assistant Managers should be converted to permanent
positions, but the third respondent failed
to do so and allowed the
applicants’ fixed-term contracts to run for the duration stated
therein.
14.4 The second
respondent failed to have regard to the parties’ closing
statements in that he made his award prior to the
date on which he
had ordered the parties to submit their closing statements.
Third
respondent’s Submissions
[15]
In opposing this application, the third respondent made the following
submissions:
15.1 The second
respondent reached his decision after careful consideration of all
the evidence presented before him.
15.2 The second
respondent found, after considering and analysing the evidence, that
the applicants were not dismissed.
Applicable
legal principles
[16]
It is well established that this Court has the power to condone the
late filing of any document on good cause shown. In this
regard, the
Court has, in determining whether there is a good cause, considered
the factors mentioned in
Melane
v Santam Insurance Co Ltd
[1]
.
[17]
In my view, the delay is not excessive and the explanation therefor
is not unreasonable. However, I am not convinced that the
applicants
have reasonable prospects of success as it will become clear herein
below. This notwithstanding, I am guided by the
Labour Appeal Court
in
NUM
v Council for Mineral Technology
[2]
where Myburgh J stated that:
“
These
facts are inter-related. They are not individually decisive…A
slight delay and a good explanation may help to compensate
for
prospects of success which are not strong…an unsatisfactory
and unacceptable explanation for the delay remains so, whatever
the
prospects of success on the merits.”
[18]
The test for the review of the arbitration award was set out in the
majority judgment of the Constitutional Court in
Sidumo
and Another v
Rustenburg
Platinum Mines Ltd and Others
[3]
.
The court stated that:
“
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?”
[19]
The second respondent was enjoined to determine whether the third
respondent had dismissed the applicants. In this respect,
the
applicants bore the onus to establish the existence of their
dismissal as envisaged by Section 192 of the Labour Relations
Act
[4]
(“the LRA”).
[20]
The evidence before the second respondent was that the applicants had
on 14 August 2006 entered into fixed-term contracts of
employment
with the third respondent.
[21]
There was evidence that on 11 July 2008, the third respondent and
SAMWU concluded a collective agreement in terms of which
the
positions of Assistant Managers, including the applicants, would be
converted into permanent positions and their fixed-term
contracts be
cancelled.
[22]
Subsequently, the applicants signed an internal memorandum stating
that:
“
2
The Assistant Managers on (sic) its meeting held on the 19
th
November 2008 resolved among others:
2.1That the
agreement entered into between South African Workers Union and
Thembisile Hani Municipality Management on 11 July 2008
is not
binding to (sic) Thembisile Hani Local Municipality Assistant
Managers, as they have already signed employment contract
(sic) with
the employer.”
[23]
Mr Croucamp submitted on behalf of the applicants that the second
respondent disregarded that they had entered into the fixed-term
contracts under duress and that those contracts should have been also
cancelled in accordance with the collective agreement. The
evidence,
viewed in its totality, cannot, in my view, support the applicants’
version in this regard. The applicants had,
unequivocally, waived
their rights emanating from the collective agreement.
[24]
According to the second respondent’s award, both parties had
agreed to submit their written closing statements on 15
March 2012.
However, the second respondent proceeded and finalised his award
which is dated 8 March 2012. Mr Croucamp submitted
that the second
respondent’s conduct in this respect constituted an
irregularity.
[25]
I have hereinabove found that the second respondent considered the
totality of the evidence before him when he concluded that
the third
respondent had not dismissed the applicants. While he had finalised
his award without considering the parties’
closing statements,
in my view his conduct does not amount to an irregularity that would
vitiate his award. In this connection,
it is apposite to make
reference to
Herholdt
v Nedbank Ltd
[5]
where the court stated that:
“…
an
error…by the arbitrator would not justify the setting –aside
of the award, unless it had the result that the arbitrator
was
diverted from the correct path in the conduct of the arbitration and
as a result failed to address the question raised for
determination
in the arbitration.”
[26]
In my view, the second respondent’s award passes the
Sidumo
test.
Order
[27]
I make the following order:
27.1
Condononation for the late filing of this application is granted.
27.2
The application is dismissed.
27.3
I make no order as to costs.
Mzungulu
Mthombeni
Acting
Judge of the Labour Court
Appearances
For
the Applicants : Mr JA Croucamp
Instructed
by : Buks Croucamp Attorneys
For
the Respondent: Advocate Bodlani
Instructed
by : Knowles Husain Lindsay Incorporated
[1]
1962
(4) SA 531(A)
at 532C-F
[2]
[1999]
10 BLLR 431 (LAC)
[3]
[2007]
12 BLLR 1097
(CC) at paragraph 110
[4]
Act
66,1995
[5]
[2012]
9 BLLR 857
(LAC)
at
para 19.