About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 164
|
|
Futures Group International (Futures Group Global Outreach Inc) v Commission for Conciliation, Mediation and Arbitration and Others (JR990/14) [2015] ZALCJHB 164 (26 May 2015)
IN THE LABOUR COURT,
JOHANNESBURG
Case no: JR 990/14
Not
Reportable
In the matter between:
FUTURES GROUP
INTERNATIONAL
(FUTURES GROUP GLOBAL
OUTREACH INC.)
Applicant
and
THE COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
First Respondent
WILLEM KOEKEMOER
Second Respondent
SEAKGAMOTHO PERCY
MATHABATHE
Third Respondent
Heard:
29 April 2015
Delivered:
26 May 2015
Summary:. Employer
purporting to rely on fixed term contract when not renewing the
contract but giving evidence to the effect that
the terms of the
project had changed and that was the reason the contract was not
renewed. Arbitration award not reviewable.
JUDGMENT
GUSH J
[1]
This
is an application to review and have the arbitration award dated 10
May 2014 made by the second respondent under case number
GATW11791/13
set aside.
[2]
The
applicant had employed the third respondent on 23 May 2012 on
probation and, at the successful conclusion of his probationary
period, employed the third respondent on a fixed term contract for a
period of 12 months on 20 September 2012. The third respondent
was
employed as a technical officer in the sexual HIV prevention project.
[3]
On
19 August 2013, the applicant’s Human Resources Manager, on the
instructions of the applicant’s Chief of Party, handed
the
third respondent a letter of the same date in which letter, the
applicant advised the third respondent “further to the
fixed
term contract which commenced on 23 May 2012 and terminates on 19
September 2013, it is with regret that we inform you that
the
contract will not be renewed due to operational reasons.”
[4]
Dissatisfied
with his “dismissal”, the third respondent referred a
dispute to the first respondent regarding his alleged
unfair
dismissal on the grounds that he had been advised on 18 April 2013
that his contract would be renewed.
[5]
At
the commencement of the arbitration, the second respondent recorded
that the issue to be decided was
‘
Whether the
[3
rd
respondent] was indeed dismissed when he was informed that is fixed
contract would not be renewed; and
Should the finding
be that the [3
rd
respondent] was indeed dismissed, whether such dismissal was fair as
envisaged by the Labour Relations Act.’
[1]
[6]
The second
respondent in addition under the heading “Points
In
Limine”
recorded the applicant’s averment that the first respondent did
not have jurisdiction on the grounds that there had been
no
dismissal.
[7]
At the
conclusion of the evidence, considering the argument and analysing
the evidence and argument the second respondent concluded
‘
Taken on a balance of
probabilities, subjectively as well as objectively speaking the [3rd
respondent] had a reasonable expectation
that his fixed term
agreement would be renewed and it was not renewed as provided for in
section 186(1)(b) of the Labour Relations
Act.
The applicant established a dismissal
and the respondent failed to prove that the dismissal was fair.’
[2]
[8]
The
applicant records in its founding affidavit that it adduced the
following evidence at the arbitration:
a.
Ms Ngcobo,
the Human Resources Manager of the applicant testified that she was
instructed by [the Chief of Party Ms Macharia] on
19 August 2013 to
notify the third respondent that his
contract
would not be renewed.
(my
emphasis)
[3]
b.
Ms
Macharia, the Chief of Party who heads the Sexual HIV Prevention
Project testified that only after consultation with the applicant’s
funder was she in a position to offer employment depending on the
focus and needs of the project. She testified that the reason
for the
non-renewal of the third respondent’s fixed term contract was
due to a refocus of the project and operational reasons.
The position
of the third respondent as technical officer was no longer
required.
[4]
[9]
The third
respondent in his evidence before the second respondent averred
that during a meeting on 18 April 2013, the Deputy
Chief of Party, Ms
Pillay, had advised the employees that the renewal of fixed term
contracts would be based on individual performance
and that all fixed
term contracts would be renewed. This evidence was denied by the
applicant’s witnesses. The basis of the
denial however was that
Pillay did not have the authority to give this undertaking. Pillay in
her evidence did not deny giving
such an undertaking but simply
indicated that she could not remember or recall such a discussion.
[10]
The
applicant raises seven grounds of review. The first six grounds of
review deals with specific paragraphs in the second respondent’s
award under the heading Analysis of the Evidence and Argument.
[5]
[11]
The first
ground of review concerns the finding by the second respondent that
the third respondent added value to the project and
that his services
could have been required beyond the date of the end of his contract.
This, the applicant avers, constituted a
gross irregularity.
[12]
The second
ground of review concerns the finding by the second respondent that
the third respondent’s supervisor and colleagues
were surprised
by the non-renewal of his contract as there was no prior consultation
and that this constituted a gross irregularity.
[13]
The third
ground of review concerns the second respondent’s conclusion
that the applicant had a duty to advise the third respondent
of the
change in the project required by the Department of Health (the
so-called operational reasons that lead to the non-renewal
of the
contract). The applicant avers that there was no duty to consult the
third respondent on these operational reasons and that
his contract
“would come to an end on 19 September 2013”. This the
applicant avers constituted a gross irregularity
on the part of the
second respondent.
[14]
The fourth
ground of review concerns the second respondent taking into account
that the Sexual HIV Prevention Project program was
an ongoing
programme and that this had a bearing on the third respondent’s
legitimate expectation of the renewal of his fixed
term contract.
This the applicant avers constituted a gross irregularity.
[15]
The fifth
ground of review concerns the second respondent’s consideration
of the fact that the project was still funded and
that all other
staff members were offered renewal of their fixed term contract for
another year. The second respondent found this
to be an indicator
that the third respondent had an expectation that his contract would
be renewed. Not only does the applicant
regard this as a gross
irregularity, in addition, under this ground, the applicant
surprisingly avers that by notifying the third
respondent of the
non-renewal of his fixed term contract one month before it was to
expire it “would have dispelled the third
respondent’s
alleged expectation that his fixed term contract would be renewed”.
This, the applicant suggests is evidence
that the second respondent
failed to properly apply his mind to all the evidence presented at
the arbitration.
[16]
The sixth
ground of review concerns the second respondent’s conclusion
that the applicant’s evidence that the reason
for not renewing
the third respondent’s contract was due to operational reasons
and thereafter to effluxion of time is contradictory.
This finding by
the second respondent, the applicant suggests, evinces a gross
irregularity.
[17]
The seventh
ground of review is that the second respondent erred in concluding
that the third respondent was dismissed and that
this constituted a
conclusion that no reasonable Commissioner would arrive at as “the
third respondent failed to provide
a single reason why was he under
the impression that his contract would be renewed” (sic).
[18]
In the
supplementary affidavit filed under rule 7A(8) (a), the applicant
qualifies the seventh ground of review by substituting
the word
“erred” with the words “gross irregularity”
and adds to the grounds of review in similar vein
to the original
grounds of review. These grounds take the matter no further.
[19]
The
applicant does however, somewhat incomprehensibly, suggest that the
relief granted by the second respondent is unreasonable
inter
alia
because the applicant is a non-profit USA funded Corporation and that
the applicant must accordingly mould its programmes in accordance
with the needs of the stakeholders.
[20]
Taking the
applicant’s grounds of review in in context, it is apparent
that the applicant is simply appealing against the
finding of the
second respondent that the third respondent had a reasonable
expectation that his contract would be renewed and
that the applicant
failed to renew it.
[21]
Logic
dictates that in circumstances where the applicant stated that the
reason for the non-renewal of the third respondent’s
contract
was due to operational reasons, despite the fact that it was a fixed
term contract, it is probable that had the operational
reasons not
arisen the contract would have been renewed. This is particularly so
given the evidence the applicant adduced at the
arbitration regarding
the meeting in April where the third respondent avers that the
employees were advised that their contracts
would be renewed.
[22]
In addition
to this the applicant records in its founding affidavit that the
third respondent was advised that his “contract
would not be
renewed”. If the applicant had not led the third respondent to
reasonably believe his contract would be renewed
or created the
impression that that the contract would be renewed this would not
have been necessary. The applicant would have
relied solely on the
expiry of the fixed term contract.
[23]
The
question however to be determined is whether the award of the second
respondent is reviewable. The test to be applied was restated
in the
matter
Goldfields
as follows:
The questions to
ask are these: (i) In terms of his or her duty to deal with the
matter with the minimum of legal formalities, did
the process that
the arbitrator employed give the parties a full opportunity to have
their say in respect of the dispute? (ii)
Did the arbitrator identify
the dispute he was required to arbitrate (this may in certain cases
only become clear after both parties
have led their evidence)? (iii)
Did the arbitrator understand the nature of the dispute he or she was
required to arbitrate? (iv)
Did he or she deal with the substantial
merits of the dispute? and (v) Is the arbitrator’s decision one
that another decision-maker
could reasonably have arrived at based on
the evidence?
[6]
[24]
In this
matter, it is abundantly clear that the award satisfies this test.
The second respondent:
clearly identified the
dispute and the issues;
understood the nature of
the dispute and dealt with the substantial merits of the dispute; and
crucially the decision of
the third respondent is clearly one that an arbitrator could
reasonably have at arrived at based
on the evidence adduced at the
arbitration.
[25]
It is
unclear from the applicant’s papers what gross irregularities
the applicant relies on other than its disagreement with
the
conclusions reached by the second respondent. The issues raised by
the applicant to justify the so-called irregularities are
no more
than an ill disguised attempt at an appeal.
[26]
The parties
agreed that costs should follow the result.
[27]
For the
reasons set out above, I make the following order:
The applicant’s
application is dismissed with costs.
D H
Gush
APPEARANCES:
FOR THE
APPLICANT:
Ms. L Cheroux
Instructed
by Stanley Moldt Attorneys
FOR THE THIRD
RESPONDENT:
Mr. H Gerber
Instructed
by Welman Attorneys
[1]
Arbitration award
para 14 and 15 pleadings page 23.
[2]
Arbitration award
para 78 and 79 pleadings page 31/2.
[3]
Founding affidavit
paragraph 20 page 9.
[4]
Founding affidavit
paragraph 21 page 10.
[5]
paragraphs 72, 73,
74, 75, 76, and 77 respectively.
[6]
Gold
fields Mining South Africa (Pty) limited (Kloof Gold Mine) v CCMA
and Others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 20.