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[2016] ZALCCT 3
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Hernandez v Department of Transport and Public Works and Others (C209/2013) [2016] ZALCCT 3 (2 February 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
Case
Number: C209/2013
In
the matter between:
MIGUEL LARA
HERNANDEZ
Applicant
and
THE DEPARTMENT
OF TRANSPORT AND
PUBLIC WORKS
First
Respondent
W.F.MARITZ N.O.
GPSSBC
Second
Respondent
Third Respondent
Date
heard: 26 August 2015
Delivered:
2 February 2016
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed review application. The applicant seeks to review
and set aside an arbitration award under Case number GPBC
8/2011. The
second respondent (the arbitrator) found that: “The respondent
had shown that the termination of the contract
of the applicant was
fair and the application is dismissed.”
[2]
The relevant background to the dispute between the parties at
arbitration is as follows:
2.1
On 13 October 2009, the South African Government entered into a
Bi-National
agreement with the Government of Cuba on the employment
of Cuban Technical advisors. The purpose of the Agreement is recorded
in
its Article 3 i.e. “to provide a framework to enable the
Republic of South Africa, through its NDPW
[1]
and relevant PDWPW
[2]
, to
utilise the technical Advisors identified by UNECA
[3]
to provide technical assistance in the construction sector.”
2.2
Articles 5 and 6 of the Bi-National agreement contain provisions
regarding the
general requirement of fixed term contracts of
employment. These provide as follows:
“
Article
5- General Requirements for Fixed –Term Contract of Employment
(1)(a) In addition to the usual terms and conditions
of a fixed-term
contract of employment, in terms of the domestic law in force in the
Republic of South Africa, the contract of
employment applicable to
the Technical Advisors employed in terms of this Agreement shall
contain the minimum terms and conditions
set out in ANNEXURE A.
(b)
It shall be a condition of every fixed-term contract of employment
referred to in this Article that the domestic law in force
in the
Republic of South Africa shall apply to the said contract of
employment and that the Parties shall consent to the jurisdiction
of
the courts of the Republic of South Africa in respect of any legal
proceedings arising therefrom.
(2)
Individual contracts signed by the Technical Advisors and the
relevant PDPW shall comply
with all the provisions contained in this
Agreement.
(3)
The Parties agree that this Agreement shall not be deemed and
construed so as to provide any right to the technical Advisors
to
claim citizenship or permanent residence in the Republic of South
Africa.
ARTICLE
6 – Special Condition of Fixed-Term Contract of Employment
(1)
It shall be a condition of every fixed-term contract of employment
referred to in this Agreement that such contract of employment
shall
be contingent upon the subsistence of this Agreement and that such
contract of employment shall come to an end, ipso facto,
on
termination of this Agreement in accordance with Article 13.
(2)
No provisions contained in this Agreement shall preclude the PDPW or
Technical advisors employed in terms of this Agreement
from
terminating the fixed term contract of employment entered into
pursuant to this Agreement in accordance with its terms and
conditions relating to termination. Such termination shall be in
accordance with domestic law in force in the Republic of South
Africa.
(3)
Every fixed-term contract shall include a provision that the contract
may be terminated at the request of the Government of
Cuba, with
reasons being given for such a request. In such instances the
Government of the Republic of Cuba shall endeavour to
provide an
alternate Technical Advisor to continue with a specific project.
2.3
The contract of employment between the applicant and the Western Cape
Government
provides in paragraph 2.8 and 2.9 thereof that:
“
2.8
This Contract of Employment is contingent upon the subsistence of the
Agreement between the Government of the Republic of Cuba
on the
employment of Cuban technical advisors.
2.9
The terms and conditions of both Annexure A and Annexure B of the
Agreement between the Government of the Republic of South
Africa and
the Government of the Republic of Cuba on the employment of Cuban
technical advisors is hereby incorporated into this
agreement and
forms an integral part hereof. The agreement is attached marked
Annexure “B”.”
2.4
Clauses (k) and (l) to ANNEXURE B of the Bilateral Agreement read as
follows:
“
(k)
the contract shall stipulate the grounds for termination, which in
addition to the permissible grounds under South African
domestic law, shall also include a reasonable request from the
Government of the Republic of Cuba to terminate the contract.
(l)
subject to the provisions of Annexure C (g), if the contract of
employment is terminated before the end of the contract period
on
grounds upon which a fixed-term contract may be terminated by law,
according to the national legislation of the Republic of
South Africa
or, if it is terminated at the request of the Government of the
Republic of Cuba, the Party which caused the termination
shall bear
the costs of the return of the Technical Advisor to Cuba;”
2.5
Annexure C (g) of the Bilateral Agreement reads:
“
(g)
if any fixed term contract is terminated due to the Technical
Advisor’s misconduct and in accordance with the domestic
law in
force in the Republic of South Africa, or if it is terminated at the
request of the Government of Cuba, the costs arising
from the
completion of the exit formalities and the purchase of his or her
return flight ticket to the Republic of Cuba shall be
for the UNECA’s
account, which shall also be responsible for replacing such Technical
Advisor within thirty (30) days of
such dismissal in accordance with
the provisions of this Agreement.”
[3]
It was common cause that the reason for the termination of the
contract of employment was not misconduct on the part of the
applicant. On 15 November 2009, UNECA sent a letter to Jacobs,
Executive Manager: Corporate Services of the respondent informing
him
that the Ministry of Construction of Cuba had decided to ‘finish’
the contract of the applicant and informing him
that arrangements had
been made for him to return to Cuba on 19 November 2009. The
applicant testified that he had had a serious
disagreement with the
local representatives of UNECA regarding remittance of his earnings
to Cuba. The applicant believed that
as Cuba was not a party to his
employment contract with the respondent, his disagreement with UNECA
would not affect the contract.
[4]
The grounds of review in the founding papers boil down to the
following: that the Arbitrator “committed a misconduct”
in that in his analysis of the dispute, he failed to make certain
findings, more particularly on whether the clauses arising from
the
Bi-National Agreement and incorporated into the employment contract
were valid and binding and enforceable in South African
law. It is
submitted in the founding papers that it is trite that a fair reason
in South Africa for termination ‘cannot be
an unlawful
instruction from a foreign sovereign.’ Further it is questioned
how a procedure going no further than simply
the handing over of a
dismissal letter could be considered a fair procedure.
[5]
Mr van der Schyff for the applicant argued that insofar as the
Bi-National Agreement purports to permit a lawful “no fault”
termination of a contract as contended by First Respondent and found
by Second Respondent, the finding stems from a material misdirection
of the law which constitutes a gross irregularity justifying the
setting aside of the award.
[6]
The arbitrator did not venture to make a finding (as contended for on
behalf of the applicant in the arbitration) that the employment
contract, including as it did the possibility of a no fault
termination on the say-so of the Cuban government, was contra bones
mores. He found rather that:
“
I
accept that the respondent was entitled to regard the terms of the
agreement as binding on it and with, to my mind, the fact that
the
applicant was also contractually bound the reference to an event (the
termination notice of Cuba) appeals to me and I find
that the
termination of the contract was fair.”
Evaluation
[7]
The arbitrator did not have the jurisdiction to consider whether the
Bi-National agreement itself is constitutionally sound
or against
public policy. It is clear from the contents of the employment
contract signed by the applicant, that is was contingent
on the
existence of the Bi-National Agreement between South Africa and Cuba.
There is no indication that either of the parties
to the dispute at
the arbitration sought to join UNECA to the proceedings. One can only
surmise the reasons for this. It may well
have been of assistance to
the arbitrator had this been done. This is more especially the case
given that a special condition of
the Bi-National Agreement was that
the termination of the contract on the instance of the Cuban
government, must be for good reason.
[8]
In deciding whether the award stands to be reviewed I am mindful of
the words of Zondo JP as he then was, when he stated that
'.
. . It seems to me that . . . there can be no doubt now under Sidumo
that the reasonableness or otherwise of a commissioner's
decision
does not depend — at least not solely — upon the reasons
that the commissioner gives for the decision. In
many cases the
reasons which the commissioner gives for his decision, finding or
award will play a role in the subsequent assessment
of whether or not
such decision or finding is one that a reasonable decision maker
could or could not reach. However, other reasons
upon which the
commissioner did not rely to support his or her decision or finding
but which can render the decision reasonable
or unreasonable can be
taken into account. This would clearly be the case where the
commissioner gives reasons A, B and C in his
or her award but, when
one looks at the evidence and other material that was legitimately
before him or her, one finds that there
were reasons D, E and F upon
which he did not rely but could have relied which are enough to
sustain the decision.'
[4]
[9]
In casu, the arbitrator’s reasoning was based on his acceptance
that the employment contract ended on the happening of
an event i.e.
the event being the intervention by the Government of Cuba in terms
of the Bi-National Agreement. A further reason
which the arbitrator
could have relied on for his decision is found in Clause (k) of
ANNEXURE B of the Bi-National Agreement, which
provides that “(k)
the contract shall stipulate the grounds for termination, which in
addition to the permissible grounds
under South African domestic law,
shall also include
a reasonable request
from the Government of
the Republic of Cuba to terminate the contract.” (My emphasis)
[10]
The proviso of a ‘reasonable request’ gives an employee
such as the applicant, and an employer such as the first
respondent,
a measure of protection against arbitrary repatriation of the
employee. In other words, it must be reasonable for such
a measure to
be taken by the Cuban Government. It was the applicant’s own
evidence that he reneged on his obligation to repatriate
all but the
equivalent of 400 US dollars of his salary to Cuba. He further told
the representative of UNECA after a very heated
argument, that he was
not going to pay the money to be repatriated to Cuba but pay ‘all
his obligations’ with his salary
and “afterwards you can
do what you want to do”.
[11]
In my view, in the unique circumstances of this matter, and on a
proper reading of the agreements in question, the question
as to
whether the Cuban Government’s request was a reasonable one
goes to the substantive fairness of the termination of
the employment
contract. Bearing in mind applicant’s own evidence at the
arbitration referred to above, the outcome of the
arbitration was
well within the bounds of reasonableness. I therefore find that the
award stands to be upheld. I do not intend
to make a costs order in
this application given that the applicant is an individual. I make
the following order:
Order
1.
The application is dismissed.
________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicant:
Jerome van der Schyff instructed by Brink & Thomas Inc
First
Respondent: Andre Coetzee instructed by the State Attorney.
[1]
National
Department of Public Works
[2]
Provincial
Department of Public Works
[3]
Cuban
company providing technical assistance
[4]
Fidelity
Cash Management Service v Commission for Conciliation, Mediation &
Arbitration & others (2008) 29 ILJ 964 (LAC)
at paragraph 102