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[2016] ZALCJHB 82
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Serongwa v University of Johannesburg (JS737/12) [2016] ZALCJHB 82 (4 March 2016)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
C
ase
no: JS 737/12
In the
matter between:
MAPULA IRENE SERONGWA
Applicant
and
UNIVERSITY OF JOHANNESBURG
Respondent
Heard
:
29 February to 2 March 2016
Delivered
:
4 March 2016
Summary:
(Automatically unfair dismissal –absolution
from the instance - existence of a dismissal)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The applicant in this matter, Ms M Serongwa,
referred an automatically unfair dismissal dispute to the court based
on alleged racial
discrimination. The respondent raised and
in
limine
objection in the pleadings that
she was not dismissed but her contract of employment simply
terminated. At the commencement of proceedings
the parties indicated
that they believed it would be necessary to hear evidence before it
could be determined if she had been dismissed
or that her contract
had simply expired. Evidence was led for two days and at the end of
the applicant’s evidence, when I
queried whether the
in
limine
point was being pursued, the
respondent confirmed that it was and the respondent applied for
absolution from the instance
on the basis that the applicant had not
made out a
prima facie
case
of dismissal.
[2]
The parties then argued the issue and the matter
was postponed until a ruling to be handed down on 4 March 2016, on
the understanding
that if absolution was not granted, further
evidence in the matter would be led after an adjournment.
The
existence of a dismissal
[3]
The following facts are not in dispute:
3.1
Since 2005, the applicant had been employed as a
part-time lecturer on a number of 10 month contracts in an academic
development
unit. It emerged from the evidence that it was common
cause that a new contract was entered into based on the number of
students
participating in the program and the availability of
third-party funding.
3.2
In 2011, the applicant’s fixed term contract
expired on 30 November 2011 and she did not receive any salary after
that date.
3.3
However, before that date arrived, the applicant
was subjected to a disciplinary enquiry relating to an email she had
sent to a
number of line managers on 15 August 2011 complaining of
what she saw as the improper conduct of some of her colleagues.
3.4
On 17 November 2011, the chairperson of the
enquiry, Advocate M Phala, issued his findings on the charges, in
terms of which he
found the applicant guilty, and invited the parties
to make representations on the issue of sanction. The applicant
contended that
she never received the findings until January 2012 and
never had an opportunity to make representations on an appropriate
sanction.
The employer however did make representations on 25
November 2011. I note that the chairperson did record that the
applicant’s
trade union representative at the time had advised
the chairperson he had been admitted to hospital and asked for an
opportunity
to make representations but that by the time his
recommendation on sanction was issued on 7 December 2011 no
submissions on her
behalf had been received from the union.
3.5
The chairperson couched his conclusion on sanction
as a recommendation when he handed it down but on 8 December 2011, he
issued
a letter on the University letterhead confirming the
termination of the applicant’s services from that date and
advising
her of a right of appeal. Although the chairperson was
aware of the applicant’s part-time status, there is no evidence
on the face of his findings or reasons for the sanction that he knew
her contract had already expired at the time he issued his
sanction.
3.6
In her statement of claim, the applicant says
that:
3.6.1
she was dismissed following the disciplinary
hearing, and
3.6.2
since her contract had been renewed every year
there was a reasonable expectation that it would be renewed at the
end of each year.
[4]
Under cross-examination the applicant agreed that
her contract ended on 30 November 2011.
Evaluation
[5]
In
[zRPz]
De
Klerk v Absa Bank Ltd and Others
[1]
the SCA reiterated
the test for absolution:
“
[10]
The correct approach to an absolution application is conveniently set
out by Harms JA in
Gordon
Lloyd Page & Associates v Rivera and Another
2001
(1) SA 88 (SCA)
at
92E - 93A:
'[2]
The test for absolution to be applied by a trial court at the end of
a plaintiff's case was formulated in
Claude
Neon Lights (SA) Ltd v Daniel
1976
(4) SA 403 (A)
at
409G - H in these terms:
''.
. . (W)hen absolution from the instance is sought at the close of
plaintiff's case, the test to be applied is not whether the
evidence
led by plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which
a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff.
(
Gascoyne
v Paul and Hunter
1917
TPD 170
at 173;
Ruto
Flour Mills (Pty) Ltd v Adelson (2)
1958
(4) SA 307 (T)
.)''
This
implies that a plaintiff has to make out a prima facie case - in the
sense that there is evidence relating to all the elements
of the
claim - to survive absolution because without such evidence no court
could find for the plaintiff (
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972
(1) SA 26 (A)
at
37G - 38A; Schmidt
Bewysreg
4th ed at 91 - 2).
As far as inferences from the evidence are concerned, the inference
relied upon by the plaintiff must be a reasonable
one, not the only
reasonable one (
Schmidt
at 93). The test
has from time to time been formulated in different terms, especially
it has been said that the court must consider
whether there is
''evidence upon which a reasonable man might find for the
plaintiff'' (
Gascoyne
(loc cit)
)
- a test which had its origin in jury trials when the ''reasonable
man'' was a reasonable member of the jury (
Ruto
Flour Mills
).
Such a formulation tends to cloud the issue. The court ought not to
be concerned with what someone else might think; it should
rather be
concerned with its own judgment and not that of another
''reasonable'' person or court. Having said this, absolution
at the
end of a plaintiff's case, in the ordinary course of events,
will nevertheless be granted sparingly but when the occasion
arises,
a court should order it in the interests of justice.'
[6]
The nub of the issue is whether the applicant has
made out a
prima facie
case
that she was dismissed by virtue of the letter of 8 December or that
she was dismissed within the meaning of s 186 of the LRA.
The
respondent contends that the applicant never pleaded that her
dismissal arose out of s 186 so that alternative argument is
not
available to her.
Dismissal
on 8 December 2011
[7]
At the time of the enquiry, it is probably true
that both parties understood that the applicant’s employment
had been terminated
by virtue of the dismissal letter of 8 December
2011. The difficulty, as a matter of law is that, when the letter
purporting to
dismiss the applicant was issued, she was no longer
employed by the respondent, because her service ended by operation of
her contract
on 30 November. Accordingly, despite outward
appearances, the letter had no legal effect whatsoever in determining
the termination
of her employment. An employer cannot dismiss
someone who is no longer in its employment.
[8]
Mr Kubayi
appearing
for the applicant ventured to argue that the employer could not now
say that the purported dismissal was not the actual
termination of
the applicant’s services. Although the applicant never pleaded
that the employer was bound by its representation
that it had
dismissed her, even if this argument could be raised, it faces two
hurdles. Firstly, the purported dismissal took place
at a time when
there was no employment relationship so it could never have been a
legally competent action by the respondent. Secondly,
in so far as
the applicant is raising an argument based on estoppel, the
difficulty she has is that, estoppel can only be raised
as a defence
and not a cause of action.
[2]
Dismissal
by virtue of s 186
[9]
S 186 of the LRA states,
inter
alia
:
(1)
'Dismissal' means that-
(a)
…;
(b)
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.”
[10]
As mentioned, the respondent contends that this
alternative basis for claiming dismissal was not pleaded, because the
applicant
relied on the letter of 8 December 2012 as the event which
constituted the dismissal. However, even if s186 could be invoked in
the determination of the dismissal, I am not satisfied the applicant
has laid a basis for this.
[11]
Firstly, the applicant’s evidence did not
deal with her expectation of continued employment on a new contract.
Secondly, if
the dismissal occurred as a result of the non-renewal of
the contract, the applicant would not have relied on the date she
received
the notice of dismissal as the date of dismissal. She
tendered no evidence when she expected the contract ought to have
been renewed.
This is perfectly understandable of course
because she was of the view that, it was the respondent’s
letter which had terminated
her service.
[12]
It was also argued that the court should have
regard to the subsequent amendments to s 186 which were not in force
when the applicant
referred her case. The amendments were
intended to prevent the use of repetitive fixed terms contracts to
avoid making someone
a permanent employee and I do not think they
would have assisted the applicant in any event.
[13]
The applicant could have filed a notice of
amendment to include an alternative plea that the dismissal took
place when her contract
would normally be renewed at the beginning of
February, but in the absence of doing so she cannot rely on that
alternative basis
of dismissal. In any event, in her evidence she did
not lay the basis for this.
Conclusion
[14]
Regrettably, in the circumstances, I am not
satisfied that the applicant has made out a
prima
facie
case establishing that she was
dismissed rather than that her employment terminated when her
contract expired.
[15]
On the issue of costs I am not persuaded that
costs should follow the result. Whatever the ultimate merits of the
applicant’s
claim might have been, if her termination could
have been construed as a dismissal, I am satisfied she made out a
prima facie
case
of discrimination which the employer needed to answer. It would be
quite inappropriate to order costs against her in this instance.
Order
[16]
Absolution from the instance is granted on the
basis that the applicant failed to make out a
prima
facie
case she was dismissed.
[17]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
N E Kubayi of Noveni Eddy Kubayin Inc
RESPONDENT:
M Lennox instructed by Eversheds
[1]
2003 (4)
SA 315
(SCA)
at
323.
[2]
De Klerk v
Old Mutual Insurance Co Ltd
1990
(3) SA 34
(E)
at
41D-H