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[2015] ZALCJHB 389
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University of South Africa v Commission for Conciliation, Meditation and Arbitration (CCMA) and Others (JR2835/2012) [2015] ZALCJHB 389 (10 November 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
No.: JR 2835/2012
In
the matter between:
UNIVERSITY
OF SOUTH
AFRICA
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
(“CCMA”)
First Respondent
WERNER
KRUGER
N.O.
Second Respondent
DIRK
JACOBUS VAN DER
MERWE
Third Respondent
AMES
WILLIAM DE
JAGER
Fourth Respondent
Heard:
7 January 2014
Delivered:
10 November 2015
JUDGMENT
PILLAY
AJ
[1]
This is an application to set aside an arbitration award dated 7
October 2012 issued by the Second Respondent. The Second Respondent
found, on a balance of probabilities, that the Third and Fourth
Respondents had a reasonable expectation that their contracts would
have been renewed. He found that the failure to renew the contracts
constituted a dismissal in terms of the
Labour Relations Act 65 of
1995
, as amended (“LRA”). The Applicant was ordered to
compensate the Third and Fourth Respondents three months’
salary.
Background
facts
[2]
The Third and Fourth Respondents were employed on two month contracts
from 1 January 2008 to 28 February 2008. The contract
was renewed for
a further five months from 1 March 2010 to 31 July 2010. There was a
further fixed term contract for a period of
seven months and twelve
months. The final contract expired on 29 February 2012. The contracts
were not renewed.
[3]
The evidence was that the Third and Fourth Respondents went to their
supervisor, Pieter Stander (“Stander”), on
a weekly basis
during their last four months of their contract period. Stander did
not have authority to enter into a contract
or extend the contracts
of employment.
[4]
Stander told the Third and Fourth Respondents that their contracts
were approved (although Stander did not give direct evidence
to this
effect), that everything was in place and that the employees did not
have to worry.
[5]
Their contracts were not available on 29 February 2012. They alleged
that Stander informed them that they should take leave
from 1 March
2012 until 17 March 2012. They further allege that they went on
leave.
[6]
They were informed on 14 March 2012 that their contracts were, in
essence, not renewed.
[7]
Stander did not have authority to extend the Third and Fourth
Respondents’ contracts. He could only make recommendations
on
whether the contracts should be extended. It was MANCOM that was
responsible to decide whether the contracts should be renewed
or not.
The arbitrator found that:
7.1
Nothing prevented Stander from informing
the Third and Fourth Respondents timeously that their contracts were
not going to be renewed.
Had he done so, there would have been no
misunderstanding as to whether the contracts would be renewed.
7.2
Stander did not have the authority to renew
the contracts;
[8]
The Applicant seeks to review and set aside the finding of the Second
Respondent on the following grounds:
8.1
the Second Respondent committed a gross
irregularity in failing to seek clarity as to what the duration of
the extended contracts
would be. In doing so, he could not properly
exercise his discretion on what the appropriate compensation would
be;
8.2
the Second Respondent failed to assess the
Third and Fourth Respondents’ evidence that they were promised
contracts and authorised
to take leave from 1 March 2012 to 17 March
2012. In doing so, he failed to assess the probabilities of the Third
and Fourth Respondents’
version;
8.3
the Second Respondent failed to consider
the terms of the fixed term contracts which did not create any rule
that the Applicant
had to give notice that it would not renew the
fixed term contracts. He also failed to consider that the contracts
would automatically
expire on 29 February 2012, and that there would
be no expectation of renewal that was created;
8.4
the Second Respondent failed to take into
consideration the common cause evidence that Stander was not
authorised to extend the
contracts;
8.5
the Second Respondent made reference to
“
surrounding circumstances
”.
There was no detail on these surrounding circumstances;
8.6
the Second Respondent made reference to
rules of the University, without giving any indication of what these
rules were and where
he got them from;
8.7
the Second Respondent failed to seek
clarity on who/what entity had previously authorised the extension of
contracts. This then
prevented him from determining whether the Third
and Fourth Respondents’ expectations were reasonable;
8.8
the Second Respondent made reference to a
channel of authority. This, however, did not go to whether the
expectation was reasonable
or not;
8.9
there was no factual finding as to what
created the alleged reasonable expectation.
[9]
The Applicant, in essence, alleges that, in light of the conspectus
of evidence, the Second Respondent reached a decision that
no
reasonable decision-maker could reach.
Analysis
[10]
The Second Respondent was required to determine whether the Third and
Fourth Respondents had a reasonable expectation of re-employment
on
the same or similar terms. The Second Respondent correctly captured
the evidence that Stander did not have any authority to
extend the
contracts of the Third and Fourth Respondents. He, however, did not
consider the evidence that the Third and Fourth
Respondents gave to
the effect that they were in discussions with Stander simply for the
purpose of following the right channels.
[11]
The Second Respondent did not consider that the continued visits by
the Third and Fourth Respondents to Stander demonstrated
that they
themselves did not have clarity. If they had clarity and certainty,
there would have been no reason for them to visit
Stander at all.
[12]
The Second Respondent failed to consider the terms of the fixed-term
contracts of employment, which stipulated that there would
be no
reasonable expectation of its renewal. He also failed to consider
whether there was any rule in place that required/obliged
the
Applicant to follow the correct channels. He does not deal with
source of the alleged rule and what the correct channels were.
He
appears to conclude, at paragraph 15 of his award that the rule
extends to some expectation that Stander ought to have informed
the
Third and Fourth Respondents timeously that their contracts were not
going to be renewed.
[13]
There was no positive duty on the Applicant to inform the Third and
Fourth Respondents timeously or otherwise that there would
be no
renewal of their contracts. Furthermore, given the common cause
evidence that Stander did not have the authority to extend
the
contracts, the Third and Fourth Respondents could not have had any
expectation, in the absence of a decision by MANCOM, that
their
contracts of employment would be renewed. It was their own evidence
that they communicated with Stander simply to follow
protocol. There
is no evidence that this following of protocol gives rise to any
expectation, reasonable or otherwise.
[14]
The Second Respondent relied on “
rules
”. There was
no evidence of any such rules. He ignored the terms of the contract
of employment.
[15]
The Second Respondent has relied on irrelevant evidence, and appears
to have even created his own evidence, particularly in
relation to
the existence of a rule that the Applicant had to approach the Third
and Fourth Respondents and inform them that their
contracts of
employment would not be renewed.
[16]
The Second Respondent ignored the relevant evidence that Stander did
not have authority to extend the Third and Fourth Respondents’
contracts of employment. He took the evidence by the Third and Fourth
Respondents, that they were simply following protocol, to
mean that
the discussions with Stander gave rise to some reasonable
expectation. However, he did not even clarify or examine what
this
protocol was, and whether it would, in fact, have given rise to any
reasonable expectation.
[17]
The Supreme Court of Appeal has endorsed the test for review as
follows:
‘
Where
a commissioner fails to have regard to material facts, that will
constitute a gross irregularity in the conduct of the arbitration
proceedings because the commissioner would have unreasonably failed
to perform his or her mandate and thereby have prevented the
aggrieved party from having its case fully and fairly determined’.
[18]
The following position was also endorsed:
‘
If
a commissioner fails to take material evidence into account, has
regard to evidence that is irrelevant, or the commissioner commits
some other conduct or irregularity during the proceedings under
review and a party is likely to be prejudiced as a consequence,
the
commissioner’s decision is liable to be set aside regardless of
the result of the proceedings or whether the basis of
the record of
proceedings, that result is nonetheless capable of justification’.
[19]
It is clear that the Second Respondent has failed to take material
evidence into account, and had regard to evidence that is
irrelevant.
He has committed a gross irregularity during the proceedings. The
Applicant has been prejudiced as a consequence. The
Second
Respondent’s decision must be set aside.
[20]
There is sufficient evidence before me to make a determination on
whether there was a reasonable expectation of renewal of
the
contracts of employment. The relevant facts are
inter alia
:
20.1
the Third and Fourth Respondents were
communicating with Stander because it was protocol. There is no
evidence that this protocol
gave rise to any reasonable expectation
of renewal of the contract of employment;
20.2
Stander did not have authority to renew the
contracts;
20.3
there was no rule that the employees had to
be notified in advance that their contracts would not be renewed.
[21]
In essence, the only evidence from the Third and Fourth Respondents
which could support their claim of a reasonable expectation
of
renewal of their contracts, were discussions with Stander where he
indicated that the contracts were not signed. Their continuous
visits
to Stander increase the probabilities that they were aware that there
was no renewal. If there had been any reasonable expectation
and/or
renewal, there would have been no reason for them to constantly visit
Stander in their last month of employment.
[22]
In my view, the Third and Fourth Respondents did not have any
reasonable expectation of the renewal of their contracts. The
Third
and Fourth Respondents have not discharged the onus on them.
Order
[23]
In the circumstances, I make the following order:
(a)
The arbitration award handed down by the
Second Respondent on 7 October, under case number CATW5864-12 is
reviewed and set aside;
(b)
The arbitration award is substituted with a
finding that the Third and Fourth Respondents were not dismissed;
(c)
There is no order as to costs.
________________________
L
Pillay AJ
Acting
Judge of the Labour Court of South Africa
For
the Applicant: ________ instructed by Koikanyang Inc. Attorneys
For
the Respondents: _____ instructed by Geyser Attorneys