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[2016] ZALCJHB 79
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Ekhuruleni West College v Ekhuruleni Labour Relations Council and Others (JR2213/13) [2016] ZALCJHB 79 (2 March 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR2213/13
In the matter between:
EKHURULENI WEST
COLLEGE
Applicant
and
EKHURULENI LABOUR
RELATIONS
COUNCIL (ELRC)
First Respondent
R DE WET
N.O
Second Respondent
SHIKWAMBANA
JERRITAH TINYIKO
Third Respondent
Heard:
3 December 2015
Delivered:
2
nd
March 2016
Summary judgment:
Review application fixed term contract
JUDGMENT
GUSH J
[1]
In
this matter the applicant applies to review and set aside the award
of the second respondent and substitute the award with an
order that
the third respondent’s dismissal was “not substantively
unfair”. In his award, the second respondent
concluded that the
third respondent (the applicant at the arbitration) had discharged
the
onus
of establishing the existence of a dismissal based on the failure of
the applicant to renew her contract. The second respondent
found that
the third respondent had a legitimate expectation that her contract
would be renewed and that in the absence of any
evidence that the
dismissal was for a valid reason or in compliance with a fair
procedure, he ordered the applicant in this matter
to pay the third
respondent compensation in an amount of R43,250.01 equal to three
months compensation.
[2]
The
third respondent was formerly employed by the applicant in accordance
with a series of fixed term contracts. Third Respondent
was first
employed by the applicant as a Lecturer on a three months fixed term
contract with effect from the 18 of July 2012. This
contract was to
run from 18 July 2012 and terminate on 30 September 2012.
[3]
Prior
to the expiry of this contract, the applicant extended the third
respondent’s contract for a further three months, commencing
from 1 October 2012 to 31 December 2012.
[4]
Before
the expiry of the second contract, the applicant again extended the
third respondent’s contract for a further three
months from 1
January 2013 to 31 March 2013.
[5]
The
third respondent was given notice of termination of the contract on
18 March 2013 and she ceased working for the applicant on
20 March
2013 and was paid up to 31 March 2013. At the time of the termination
of the contract, the third respondent was pregnant.
The applicant had
been made aware of her pregnancy during January of 2013.
[6]
During
July 2012, the applicant had advertised a number of permanent posts,
including the post the third respondent was occupying.
The closing
date for applications was 3 August 2012. The closing date fell within
the duration of the third respondent’s
first contract.
[7]
At
the arbitration, the second respondent correctly determined the issue
to be decided as whether the third respondent had been
dismissed and
if so whether the dismissal was fair. The second respondent
identified that in order to establish a dismissal, the
third
respondent bore the
onus
of establishing that she had a reasonable expectation for her
contract to be renewed and that the applicant had not done so.
[8]
The
third respondent gave evidence herself and called two witnesses. The
applicant elected not to adduce any evidence and relied
purely on the
expiry of the fixed term contract in opposing the third respondent’s
application.
[9]
Briefly,
the third respondent’s evidence was that, at the time of her
employment, she had been advised by the applicant’s
human
resource department that although the position was a temporary one it
was a three month renewable contract. Her unchallenged
evidence was
that she would not have accepted the temporary post if she had not
been assured that it would be continually renewed.
The third
respondent was permanently employed at the time she took up
employment with the applicant.
[10]
During
January 2013, she advised the applicant’s human resource
manager, Ms Mgwexe, that she was pregnant and enquired about
maternity benefits. Ms Mgwexe advised the third respondent to obtain
a letter from her doctor detailing the expected date of the
confinement and to complete and submit maternity leave forms as she
would be entitled to four months maternity leave.
[11]
This
she did and attempted to hand over the documents to Ms Mgwexe. She
testified that Ms Mgwexe had advised her that she was busy
and the
applicant should not to be concerned as long as she had complied by
the “Easter holidays”.
[12]
The
third respondent confirmed having received the notice of the
termination of her contract on 18 March 2013 and had consulted
with the applicant’s human resource department but to no avail.
Her evidence was that both Mgwexe and her immediate superior
Mr
Kkalanga expressed concern and surprise at the fact that she had been
given notice.
[13]
Ms
Mgwexe, giving evidence for the third respondent, confirmed that she
had asked the third respondent to obtain a doctor’s
letter and
complete the forms “in order to secure a replacement for her”.
Ms Mgwexe further stated that she had done
this on the understanding
that the advertised positions had not been filled. There was no
evidence to suggest that the status of
the advertised positions was
ever discussed with the third respondent.
[14]
The
third respondent’s supervisor, the Department of engineering
studies HOD, Mr Kkalanga gave evidence for the third respondent.
He
confirmed that he too had asked the third respondent for a doctor’s
note detailing the expected date of confinement.
[15]
In
analysing the evidence and the argument presented, the second
respondent correctly dealt with
inter
alia
:
a.
the
right of employees to fair Labour practices;
b.
the
provisions of section 187(1) of the Labour Relations Act 66 of 1995
(the Act) relating to automatically unfair dismissals in
the case of
pregnancy;
c.
that
the third respondent had to establish that she had been dismissed on
the grounds that she had a reasonable expectation that
the contract
would be renewed as provided for in section 186(1) of the Act; and
d.
That
if she was relying on the averment that the dismissal was an
automatically unfair dismissal, that she had to prove that she
had
been dismissed for reasons relating to her pregnancy.
[16]
In
a well-reasoned award, the second respondent concluded that the third
respondent had established that she had a reasonable expectation
that
the contract would be renewed and that she had accordingly been
dismissed. The second respondent was not persuaded that
the
third respondent has established that the reason for the dismissal
was a reason related to her pregnancy.
[17]
The
second respondent found that in many respects the evidence of the
witnesses subpoenaed and called by the third respondent who
were
employees of the applicant was unreliable and unsatisfactory. Despite
this the second respondent found that they corroborated
the essential
elements of the third respondent’s evidence.
[18]
Specifically,
the second respondent concluded, in dealing with the applicant’s
explanation for the termination of the third
respondents employment
that the applicant had not adduced any evidence rebutting the
existence of a dismissal nor any evidence
to suggest that there was a
valid reason or fair process in the dismissal.
[19]
As
far as the second respondent’s finding that the third
respondent was dismissed, it is completely inconceivable that the
third respondent would not have had a reasonable expectation that her
contract would be renewed in light of the her evidence, corroborated
by the evidence of her two witnesses that she was requested to obtain
a doctor’s certificate regarding her pregnancy and
was to
complete maternity leave forms. This is particularly so given the
unchallenged evidence of the assurance that her contract
would be
renewed and the actions of the applicant in renewing it on two
subsequent occasions.
[20]
In
the founding affidavit, the applicant sets out its grounds of review.
The applicant appears to rely on the fact that the second
respondent
committed a gross irregularity in the conduct of the arbitration
proceedings and that the outcome reached by the second
respondent is
not one that could be reasonably reached on the evidence.
[21]
In
support of these grounds of review, the applicant sets out what is in
essence grounds of appeal in respect of the second respondent’s
award.
[22]
Given
that the applicant relies on an averment that the second respondent
committed a gross irregularity, it is necessary to refer
to the test
set out by the Labour Appeal Court in the
Gold
Fields
Mining
South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation Mediation and Arbitration and Others
[1]
matter
(
Gold
Fields
).
In this matter the court held :
The court in
Sidumo
was
at pains to state that arbitration awards made under the Labour
Relations Act
[2]
(LRA) continue to be determined in terms of s145 of the LRA but that
the constitutional standard of reasonableness is “suffused”
in the application of s145 of the LRA. This implies that an
application for review sought on the grounds of misconduct,
[3]
gross irregularity in the conduct of the arbitration proceedings,
[4]
and/or excess of powers
[5]
will not lead automatically to a setting aside of the award if any of
the above grounds are found to be present. In other words,
in a case
such as the present, where a gross irregularity in the proceedings is
alleged, the enquiry is not confined to whether
the arbitrator
misconceived the nature of the proceedings, but extends to whether
the result was unreasonable, or put another way,
whether the decision
that the arbitrator arrived at is one that falls in a band of
decisions to which a reasonable decision-maker
could come on the
available material.
[6]
And
In short: A review
court must ascertain whether the arbitrator considered the principal
issue before him/her; evaluated the facts
presented at the hearing
and came to a conclusion which was reasonable to justify the
decisions he or she arrived at.
[7]
[23]
In
summary the court in
Gold
Fields
records:
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?
[8]
[24]
In
this matter, the answers to the questions are clear. Not only did the
second respondent deal with the matter appropriately and
afford the
parties a full opportunity to have their say, the second respondent
identified and understood the dispute he was required
to arbitrate
and dealt with the substantial merits of the dispute. It is also
abundantly clear from the award that the second respondent’s
decision was eminently a decision that another decision-maker could
reasonably have arrived at.
[25]
As
far as costs are concerned, there is necessary to record that the
legal representative of the third respondent, Mr Goldberg saw
fit not
to attend court when this matter was heard. Mr Goldberg took it upon
himself to dispatch a candidate attorney on the morning
of the
hearing to advise the court that he was otherwise and elsewhere
engaged. Needless to say when the matter was called Mr Goldberg
was
conspicuous by his absence. In the circumstances, and despite the
fact that the applicant’s review is dismissed (without
the
assistance of Mr Goldberg), I make no order as to costs.
[26]
For
the reasons set out above I make the following order:
a.
the
applicant’s application is dismissed with no order as to costs.
___________
Gush J
Judge
of the Labour Court of South Africa.
APPEARENCES
FOR THE
APPLICANT
Mr
Kolwi.
Motalane
Kgariya Inc
FOR
THE THIRD RESPONDENT
Mr Goldberg (failed to appear)
Goldberg attorneys
[1]
[2014] 1 BLLR 20
(LAC).
[2]
66 of 1995.
[3]
S145(2)(a)(i) of the LRA.
[4]
S145(2)(a)(ii) of the LRA.
[5]
S145(2)(a)(iii) of the LRA.
[6]
Paragraph 14
[7]
Paragraph 16
[8]
Para 20 the
Sidumo
test.