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[2015] ZALCPE 6
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Department of Sport Recreation Arts and Culture v General Service Sectoral Bargaining Council (GPSSBC) and Others (P364/12) [2015] ZALCPE 6 (13 February 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case No: P 364/12
In
the matter between:
DEPARTMENT
OF SPORT RECREATION ARTS
AND
CULTURE Applicant
And
GENERAL
SERVICE SECTORAL
BARGAINING COUNCIL
(GPSSBC) First
Respondent
TOBY MARE (THE
PANELIST OF THE GPSSBC) Second
Respondent
NOTHUKELA
MASIZA Third
Respondent
Heard:
14
October 2014
Delivered:
13
February 2015
Summary:
The
bargaining council lacks jurisdiction to arbitrate a dispute arising
from the dismissal of a employee as envisaged in section
186(i)(b) of
the LRA when the employee fails to prove a dismissal.
JUDGMENT
LALLIE
J
Introduction
[1] This
is an application to review and set aside a ruling of the second
respondent (“the arbitrator”)
in which he found that the
first respondent (“the bargaining Council”) had
jurisdiction to arbitrate the dispute between
the applicant and the
third respondent. It is opposed by the third respondent.
[2] The
facts of this matter are briefly that the third respondent was
employed by the applicant as an Executive
Assistant in the 2010 World
Cup unit on a fixed term contract which ran from August 2006 to 31
December 2010. The third respondent
was the Executive Assistant of
one of the applicant’s senior managers, Mr Nkwinti. In a letter
dated 22 December 2010, Mr
Nkwinti requested that the third
respondent’s fixed term contract be extended until the post of
Executive Assistant to the
Senior Manager Recreation (the post) was
advertised. Mr Nkwinti’s request was not granted and the third
respondent left the
workplace during January 2011. Offended by the
decision not to accede to Mr Nkwinti’s request, the third
respondent referred
an unfair dismissal dispute to the first
respondent. Her referral was based on section 186 (i) (b) of the
Labour Relations Act
66 of 1995 (LRA) which defines dismissal as
follows:
‘
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’.
[3] The
applicant challenged the first respondent’s jurisdiction to
arbitrate the dispute the third respondent
had referred on the basis
that her dismissal claim was based on the applicant’s refusal
to appoint her on a permanent basis.
Her claim, according to the
applicant, fell outside the jurisdiction of section 186 (i) (b) of
the LRA. The arbitrator’s
reasons for his decision that the
third respondent may pursue her dispute under the auspices of the
first respondent is captured
in his award as follows:
‘
19. The
parties are no longer divided over the meaning of section 186 (1) (b)
in so far as there is no dispute
that the Labour Appeal Court has now
settled the ongoing uncertainty as to whether an expectation of
permanent employment was also
envisaged under this section. Clearly
it does not.
20. As
to whether the expectation of a further contract is similar, the
expectation reasonable, or whether it must
be “renewal”
and not an “extension” of a previous contract are all
factors that must, in my view, be taken
into account before deciding
on whether that it was fair not to renew the applicant’s
contract for another term.
21. Interpreting
or applying section 186 of the Act to a set of facts are merely
issues in dispute which
may or may not have a bearing on the real or
main dispute’.
Grounds
for review
[4] The
applicant’s main ground for review is that the arbitrator
lacked jurisdiction to arbitrate the dispute
before him. He
disregarded the third respondent’s evidence in chief and under
cross-examination to the effect that she had
legitimate expectation
to permanent employment and accepted her evidence in re-examination
that she had an expectation that her
fixed term contract would be
extended until the position she sought to be appointed to had been
advertised. The applicant submitted
that absent the explanation by
the arbitrator for deciding on the version he preferred, his award
was unreasonable and susceptible
to review. The applicant further
submitted that the arbitrator’s conduct of reaching a decision
which was inconsistent with
the evidence before him constituted a
gross irregularity as the third respondent was not dismissed.
[5] The
basis of the third respondent’s opposition was that at all
material times her case was that the applicant
failed to renew her
fixed term contract by virtue of the conduct of its officials who led
her to believe that her fixed term contract
would be renewed pending
the advertisement of the post and the filling thereof by due process.
She further submitted that the expectation
of permanence in the post
properly contextualised in both the documents before the Bargaining
Council and her evidence that her
case was in fact not one related to
the non-renewal of a fixed term contract, but that she was seeking an
order that the contract
be made permanent was opportunistic and
insupportable. She sought to rely on Mr Nkwinti’s letter in
which he requested that
she be retained until the permanent post of
the Executive Assistant to the Senior Manager Recreation was
advertised and filled.
Mr Nkwinti requested to retain her on a
permanent basis which request was supported by a senior manager.
Being allowed to work
for a month after the expiry of her contract
also led her to have a legitimate expectation that when the post was
advertised Mr
Nkwinti would be instrumental in considering her for a
permanent appointment. She accused the applicant of being
opportunistic
in characterizing her case to oust the jurisdiction of
the bargaining council. She submitted that the arbitrator was correct
in
finding that the bargaining council has jurisdiction over the
dispute because her case was manifestly based upon the applicant’s
failure to renew a fixed term contract until the post could be
advertised and properly filled by due process. The applicant
explained
that her case was that her fixed term contract was not
renewed when it ought to have been renewed and that the renewal could
lead
to permanence if due process was then followed with the post
being advertised.
Intervention
in media res
[6] The
third respondent argued that the applicant halted the arbitration
proceedings for purposes of bringing
the present application before
she was afforded an opportunity to lead a witness, Mr Nkwinti. The
applicant expressed the need
to review the jurisdictional ruling
issued after the respondent had testified as it was convinced at that
stage that the bargaining
council lacked the necessary jurisdiction
to arbitrate the dispute the respondent had referred. The court has
the power to intervene
in media res to restrain illegalities, to
prevent grave injustice or where justice may not otherwise be
achieved. In this regard
see
Booysen
v The Minister of safety and security and Others
[1]
.
As the outcome of the jurisdictional ruling dealt with the first
respondent’s power to arbitrate the dispute before the
arbitrator, this court’s intervention is justified in order to
prevent the injustice of having the applicant hauled before
the first
respondent who lacked the necessary jurisdiction. In the absence of
jurisdiction, the award would be a nullity.
The
test for review
[7] The
test to review a decision whether the first respondent had the
necessary jurisdiction to arbitrate the
dispute before the arbitrator
is objective. It is whether based on the facts before the arbitrator
it can be established that the
dispute falls under the jurisdiction
of the first respondent. The test is expressed thus in
SA
Rugby Players Association (SARPA) and Others v SA Rugby (Pty) Ltd and
Others, SA Rugby (Pty) Ltd SARPY and Another
[2]
‘…
The issue
was simply whether objectively speaking, the facts which would give
the CCMA jurisdiction to entertain the dispute existed.
If such facts
did not exist, the CCMA had no jurisdiction irrespective of its
finding to the contrary’.
The
Court explained the operative terms of section 186 (i) (b) of the LRA
to be that the employee should have reasonable expectation,
and the
employer fails to renew a fixed term contract or renew it on less
favourable terms.
[8] In
University
of Pretoria v Commission for Conciliation Mediation and Arbitration
and Others
[3]
,
a decision which both parties sought to rely on, the Court expressed
the view that section 186 envisages that two requirements
must be met
in order for any employer’s action to constitute dismissal.
Firstly, reasonable expectation on the part of the
employee that a
fixed term contract will be renewed on the same or similar terms.
Secondly, there must be a failure by the employer
to renew the
contract on the same terms or failure to renew it at all.
[9] The
applicant’s case to have the jurisdictional ruling reviewed and
set aside is based on the unreasonableness
of the ruling. Its
approach does not detract from the fact that its main ground for
review is that the third respondent was not
dismissed as envisaged in
section 186 (i) (b) of the LRA. Absent the dismissal, the first
respondent had no jurisdiction to arbitrate
the dispute before the
arbitrator. The arbitrator’s ruling to the contrary is
incorrect and stands to be reviewed and set.
The applicant argued
that the third respondent failed to prove a reasonable expectation of
the renewal of a fixed term contract
beyond 2010. She was employed in
the unit which assisted in the 2010 soccer world cup and her services
were not unnecessary after
the completion thereof. Her expectation of
permanent employment fell outside the purview of section 186 (i) (b)
of the LRA.
[10] The
third respondent’s version does not assist her. Her expectation
is based on the conduct of officials
of the applicant who led her to
believe that her fixed term contract would be renewed pending the
filling of the permanent post
of the Executive Assistant to the
Senior Manager Recreation by due process. She further submitted that
she had been allowed to
form a legitimate expectation that when the
post was advertised, Mr Nkwinti would be instrumental in considering
her for a permanent
appointment.
[11] It
is common cause that the applicant did not renew the third
respondent’s fixed term contract. On the
third respondent’s
own version the expectation she had was not for a renewal of the
contract on the same or similar terms.
She expected her contract to
be renewed until a permanent post was advertised. Her expectation was
unreasonable because it is based
on her being given an unfair
advantage over other applicants when the post would eventual be
advertised as she expected that Mr
Nkwinti would be instrumental in
her appointment to the post. It is not related to the terms of the
fixed term contract the applicant
refused to renew.
[12] The
arbitrator identified the dispute before him correctly. He needed to
determine whether he had jurisdiction
to arbitrate the dispute before
him. He recorded that the applicant’s case was that the third
respondent’s claim fell
outside the ambit of 186 (i) (b) of the
LRA for both reasons she sought to rely on, namely, expectation of
permanent employment
and expectation of the renewal subject to the
advertising of the permanent post. The third respondent submitted
that the renewal
of a fixed term contract did not have to be
precisely for the same period. The nature of the work she would be
doing was identical
to that which she previously performed. The third
respondent argued that her expectation of permanent employment and
renewal of
her fixed term contract pending the filing of the post
were not mutually exclusive in that permanent employment might well
follow
after due process.
[13] The
arbitrator acknowledged that expectation of permanent employment
falls outside the realm of section 186
(i) (b) of the LRA. Having
correctly identified the dispute before him that he had to decide
whether he had the requisite jurisdiction,
the arbitrator made an
incorrect finding that interpreting or applying section 186 of the
LRA to a set of facts are merely issues
in dispute which may or may
not have a bearing on the real or main dispute. The question whether
a bargaining council has jurisdiction
to arbitrate a dispute of an
unfair dismissal arising from the employer’s failure to renew a
fixed term contract cannot be
properly determined without the
application of section 186 of the LRA. The arbitrator should have
applied the section 186 (i) (b)
to determine the existence of a
dismissal as without a dismissal he had no jurisdiction to arbitrate
the dispute.
[14] The
arbitrator erred in not rejecting the third respondent’s
argument that her expectation of permanent
employment and a renewal
of the fixed term contract until a permanent post was advertised were
not mutually exclusive in that permanent
employment might follow
after due process. Expectation of permanent employment falls outside
the realm of section 186 (i) (b).
See
University of Pretoria
(supra).
The arbitrator made a finding that the relief sought was
for the applicant to renew the third respondent’s fixed term
contract
which is in the power of the first respondent to hear and
determine. This finding overlooks the correct legal position that the
third respondent had to establish that the first respondent had
jurisdiction to determine the dispute she had referred by proving
her
dismissal. She failed to do so and left the first respondent without
the necessary jurisdiction to determine the dispute. The
arbitrator’s
ruling that the first respondent had jurisdiction to arbitrate the
dispute which had been referred by the third
respondent is incorrect
and stands to be reviewed and set aside.
[15] In
the premises the following order is made:
15.1 The
jurisdictional ruling issued by the second respondent under case
number GPBC 3913\2011 and dated 28 June
2012 is reviewed and set
aside and substituted with the following:
15.1.1 The
first respondent lacks jurisdiction to arbitrate the dispute referred
by the third respondent under
case number GPBC 3913/2011.
Lallie
J
Judge
of the labour Court of South Africa
APPEARANCE
For
the Applicant:
Advocate Bono
Instructed
by:
State Attorney
For
the Third Respondent:
Advocate Grobler
Instructed
by:
Micheal Randel Attorneys
[1]
(2011)
32
ILJ
112 (LAC) at pp 129-130
[2]
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC) at para 41.
[3]
(2012)
33
ILJ
183 (LAC).