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[2017] ZALCJHB 257
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Rademeyer v Aveng Mining Ltd and Others (JR322/15) [2017] ZALCJHB 257 (28 June 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
No: JR 322/15
In
the matter between:
JAN CARL
WILLEM
RADEMEYER
Applicant
and
AVENG MINING
LTD
First
Respondent
J D SELLO
N.O. (AS
ARBITRATOR)
Second
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION AND
ARBITRATION
Third
Respondent
Heard
:
27 October 2016
Delivered
:
28 June 2017
Summary:
CCMA
arbitration proceedings – Review of proceedings, decisions and
awards of commissioners – Test for review –
Section 145
of LRA 1995 – Review concerning issue of jurisdiction –
Test of rationality and reasonableness does not
apply – award
considered de novo on the basis of being right or wrong
Dismissal –
expiry of fixed term contract of employment – fixed term
contract automatically terminated – does
not constitute
dismissal as contemplated by Section 186(1)(a)
Dismissal –
reasonable expectation – application of Section 186(1)(b) –
principles considered – no proper
case made out – Section
186(1)(b) not applicable
Dismissal –
determination of existence of dismissal – finding that no
dismissal exists upheld
Review of
award – conclusion of arbitrator correct – Arbitration
award upheld – review dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1]
This
matter concerns an application by the applicant to review and set
aside an arbitration award of the second respondent in his
capacity
as a commissioner of the CCMA (‘the third respondent’).
This application has been brought in terms of Section
145, as read
with Section 158(1)(g), of the Labour Relations Act
[1]
(‘the LRA’).
[2]
The
second respondent was called upon to decide whether the applicant had
been dismissed by the first respondent. According to the
applicant,
the first respondent in effect dismissed him unlawfully and without
cause, whilst according to the first respondent,
the applicant was
not dismissed but his limited duration contract had come to an end.
In an award dated 23 December 2014, the second
respondent then
decided that the applicant’s limited duration contract had
terminated, and he was not dismissed by the first
respondent.
The second respondent then dismissed the applicant’s referral.
It is this determination by the second
respondent that forms the
subject matter of the review application brought by the applicant.
[3]
The
arbitration award was served on the applicant on 23 December 2014.
The applicant review application was filed on 2 March
2015, making
the application out of time where it came to the 6(six) weeks’
time limit in terms of Section 145 of the LRA.
The applicant applied
for condonation, and condonation was granted by Van Niekerk J on 22
June 2016. The review application
is thus properly before me
for determination, which I shall now attend to by first setting out
the relevant background facts.
The
relevant background
[4]
The
applicant had been employed by the first respondent in the past, also
on a fixed term contract of employment, which ended in
2008.
The applicant is a qualified boiler maker and was employed in that
capacity.
[5]
The
applicant returned to the employment of the first respondent in 2010,
again on the basis of a fixed term contract of employment.
The
parties concluded a written contact of employment, which was signed
on 7 April 2010, and which will be referred to in this
judgment as
‘the contract’. The salient terms of the contract was as
follows:
5.1
The
contract was concluded specifically for the first respondent’s
mining contract at Thuselisha. As a result, and in
clause 1.1
of the contract, it is recorded that ‘
the
Employer is not in a position to offer permanent employment but is
able to offer employment of a temporary nature’
.
5.2
The
applicant was employed as a boilermaker (grade 4), on a temporary
basis, with his employment commencing 1 March 2010 and terminating
upon completion of the employer’s / employee’s
contractual obligations. It is stated in clause 1.2 that the
contract ‘will automatically cease to be in operation’,
in such event. The contractual obligations was the work on the
Thuselisha contract.
5.3
The
parties in clause 1.3 agreed that there will be no expectation of
permanent or continued employment upon expiry of the contract,
and
that the expiry of the contract would not constitute a dismissal, but
a termination of employment due to expiry of the contract.
[6]
The
contract endured until 2014. The circumstances as to how it came to
an end will be set out hereunder. At the time of termination
of the
contract, the applicant stated he was earning a cost to company
salary of R44 000.00 per month. The first respondent
disputed
this and said the applicant was earning R27 420.67. Nothing
turns on this dispute.
[7]
On 8
April 2014, the applicant was issued with a written notice by the
first respondent, indicating that the contract was ‘nearing
completion’. The notice recorded that the contract would
automatically terminate on 8 May 2014, and shall not be construed
as
a dismissal, but deemed to be completion of the contract. This notice
is in line with the terms of the contract, referred to
above.
[8]
According
to the first respondent, the applicant was issued with this notice
because the contract it had at Thuselisha, and on which
the applicant
was specifically employed, had come to an end. It was actually common
cause in the arbitration that this Thuselisha
contract had come to an
end, with only ‘mopping up’, as the applicant himself
described it, to be completed.
[9]
The
applicant’s case however was that it was not just as simple as
reflected above. According to the applicant, a certain
“Johannes”
who worked in the first respondent’s HR department, on 1
November 2013, handed him along with other
employees a notice of
termination of contract notifying them that their employment
contracts would end at the end of November 2013.
The applicant
said he accepted this, and because this would mean that as from 1
December 2013 he would be unemployed, the applicant
then sought
alternative employment at Sasol Mining.
[10]
According
to the applicant, he had an offer of employment from Sasol Mining,
which he received on 26 November 2013. However, circumstances
intervened in that one of the first respondent’s site foremen,
Willem Meyer (‘Meyer’) informed the applicant
that the
earlier notice of termination issued to the applicant in November
2013 had been withdrawn and he would continue to work
at Thuselisha.
[11]
Also,
the applicant contended that he was verbally offered a position at
the first respondent’s contract at Shondoni Shaft
(‘Shondoni
contract’), once the work at Thuselisha had been completed.
This verbal offer was, according to the applicant,
made by one John
Sinclair (‘Sinclair’). The applicant said that Sinclair
told him to simply send through his CV for
the position and there was
no need for him to go to an interview.
[12]
The
applicant stated that because of the first respondent’s
conduct, as set out above, he decided not to accept the offer
he had
from Sasol and continued working at Thuselisha, but now without a
fixed term contract.
[13]
When
the applicant then received the notice of termination of the contract
on 8 April 2014, he initially refused to sign it, but
Sinclair then
assured him that the notice was just a formality and he would be
offered permanent employment on the Shondoni contract.
The applicant
then signed the notice, but after he signed the notice, he was told
there was no work for him on the Shondoni contract.
He then
referred a dispute to the CCMA.
[14]
The
first respondent’s case differed sharply from the aforesaid
case of the applicant. According to the first respondent,
there
was no notice of termination of contract ever issued to the applicant
in November 2013. The first respondent explained that
the applicant
had indeed been part of a first batch, called ‘batch A’,
of employees who would have been given notice
on 1 October 2013 that
their contracts would come to an end at the end of October 2013, but
this batch was withdrawn and the notices
were never issued to the
employees, because the work was not yet completed. There was another
batch of employees, called ‘batch
B’, who indeed were
issued with notices of termination of contract on 1 October 2013 that
their contract would end on 31
October 2013, because the work of
these employees did end. The applicant was not part of ‘batch
B’. According
to the first respondent, the applicant at
all times remained working, based on the contract, at the Thuselisha
contract, because
his work had not yet been concluded.
[15]
The
first respondent contended that the applicant was never offered a
permanent position on the Shondoni contract. According to
the first
respondent, any fixed term contract employee that wanted a permanent
position had to follow the proper recruitment processes
and apply for
the position, once advertisements for the position has been sent out.
Also, Sinclair could not have offered the applicant
such a position,
as he simply did not have the power to do so and it was only the
operations director, Hein Liebenberg, who could
make such an offer.
[16]
The
first respondent’s case was that when the applicant’s
work was coming to an end at Thuselisha, he was given the
notice of
termination of the contract on 8 April 2014, and the contract
automatically terminated on 8 May 2014, meaning there was
no
dismissal of the applicant.
[17]
The
above was, in summary, the facts as they came before the second
respondent as arbitrator. The second respondent decided, based
on
these facts, and other considerations I address hereunder, that the
applicant had not been dismissed by the first respondent,
but that
his fixed term contract of employment had ended on 8 May 2014. The
second respondent then dismissed the applicant’s
referral,
giving rise to the current review application.
The
test for review
[18]
In
Mnguti
v Commission for Conciliation, Mediation and Arbitration and
Others
[2]
the Court held as follows:
‘
The
issue whether or not a dismissal exists concerns the jurisdiction of
the CCMA. If there is no dismissal, then the CCMA has no
jurisdiction
to entertain an unfair dismissal claim. Where a commissioner thus
finds that no dismissal exists, that commissioner
in essence
determines that the CCMA does not have jurisdiction and the matter is
then dismissed on that basis.
’
[19]
The
above being the case, the first question to be answered is where such
a determination by a commissioner is then challenged on
review to the
Labour Court, on what basis is such review then decided?
[20]
In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[3]
the Court considered the review test postulated by
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[4]
and said:
‘…
.
Nothing
said in Sidumo means that the CCMA’s arbitration award can no
longer be reviewed on the grounds, for example, that
the CCMA had no
jurisdiction in a matter or any of the other grounds specified in
section 145 of the Act.
If
the CCMA had no jurisdiction in a matter, the question of the
reasonableness of its decision would not arise
…. ’ (emphasis added)
[21]
In
simple terms, where the issue to be considered on review is about the
jurisdiction of the CCMA, the Labour Court is entitled
to, if not
obliged, to determine the issue of jurisdiction of its own accord. In
doing so, the Labour Court determines the issue
de
novo
in order to decide whether the determination by the commissioner on
jurisdiction is right or wrong. In
Zeuna-Starker
Bop (Pty) Ltd v National Union of Metalworkers of SA,
the Court held:
[5]
‘
The
commissioner could not finally decide whether he had jurisdiction
because
if he made a wrong decision, his decision could be reviewed by the
Labour Court
on
objectively justiciable grounds
....’
(emphasis added)
[22]
In
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and
Others,
[6]
the Labour Appeal Court articulated the enquiry as follows:
‘
The
issue that was before the commissioner was whether there had been a
dismissal or not. It is an issue that goes to the jurisdiction
of the
CCMA. The significance of establishing whether there was a dismissal
or not is to determine whether the CCMA had jurisdiction
to entertain
the dispute. It follows that if there was no dismissal, then, the
CCMA had no jurisdiction to entertain the dispute
in terms of s 191
of the Act.
The
CCMA is a creature of statute and is not a court of law. As a general
rule, it cannot decide its own jurisdiction. It can only
make a
ruling for convenience. Whether it has jurisdiction or not in a
particular matter is a matter to be decided by the Labour
Court…’
[23]
I
have had the opportunity to deal with this kind of review test,
specifically in the context of whether a dismissal exists, in
Trio
Glass t/a The Glass Group v Molapo NO and Others
[7]
and
said:
‘
The
Labour Court thus, in what can be labelled a 'jurisdictional' review
of CCMA proceedings, is in fact entitled, if not obliged,
to
determine the issue of jurisdiction of its own accord. In doing so,
the Labour Court is not limited only to the accepted test
of review,
but can in fact determine the issue de novo in order to decide
whether the determination by the commissioner is
right or
wrong.’
[24]
This
‘right or wrong’ review approach has been consistently
applied in a number of judgments, in instances where the
issue for
determination on review concerned the jurisdiction of the CCMA where
the commissioner had to decide whether a dismissal
exists.
[8]
In particular, and in circumstances very similar to the matter
in
casu
,
the LAC in
De
Milander v Member of the Executive Council for the Department of
Finance: Eastern Cape and Others
[9]
held:
‘
Thus
the issue before the commissioner, whether or not there had been a
dismissal, was a jurisdictional issue. This means that if
there was
no dismissal the bargaining council did not have jurisdiction to
entertain the dispute referred to it by the appellant
…’
[25]
I
will therefore decide whether the determination of the second
respondent that the applicant was not dismissed, but his fixed term
contract of employment automatically terminated, was right or wrong,
by way of a
de
novo
consideration of the justiciable facts on record, and the relevant
principles of law.
The grounds
of review
[26]
The
applicant’s case and grounds for review must be made out in the
founding affidavit, and supplementary affidavit.
[10]
As was said
in
Northam
Platinum Ltd v Fganyago NO and Others
[11]
:
‘…
.
The basic principle is that a litigant is required to set out all the
material facts on which he or she relies in challenging
the
reasonableness or otherwise of the commissioner's award in his or her
founding affidavit’
.
[27]
Because
this review application entails a
de
novo
consideration as to whether the decision of the second respondent
that the applicant was dismissed, is right or wrong, the actual
reasoning of the second respondent as contained in his award is of
lesser importance. The review grounds are thus not aimed at
showing
that this reasoning is unreasonable, but would rather be setting out
a basis as to why the applicant contends the correct
finding should
have been that he was indeed dismissed.
[28]
The
applicant accepts, which is confirmed in the founding affidavit, that
he was employed on a fixed term contract of employment.
The
applicant’s case is that he was issued with an end of contract
notice in November, ending this contract at the end of
November 2013,
but he continued to work unabated after that. This meant that
he was no longer continuing his work under a
fixed term contract of
employment.
[29]
The
applicant further contends that the end of contract notice of 8 April
2014 was unlawful, as the first respondent had undertaken
to transfer
him to the Shondoni contract as a permanent employee. This
undertaking was either in the form of a promise, or an actual
offer.
For this reason, according to the applicant, the end of contract
notice was thus a dismissal, which dismissal was unfair.
Analysis
[30]
In
deciding whether the applicant was dismissed, the point of departure
has to be the consideration that the applicant had the
onus
to prove that he was dismissed.
[12]
[31]
As
the applicant himself conceded, his employment at the first
respondent was on the basis of a fixed term contract of employment.
The written memorandum of this contract was part of the evidence, and
was undisputed. This was the only contract in existence between
the
applicant and the first respondent. The terms of this contract were
clear. The applicant was not guaranteed permanent employment
and did
not have any expectation of continued employment on expiry of the
contract. His continued employment was directly
linked to him
having duties on the first respondent’s Thubelisha contract.
His employment would automatically end on
expiry of the contract
term.
[32]
There
is in my view nothing on the evidence that contradicts these clear
contract terms. The applicant’s work on the Thubelisha
contract
ended, and he was then given notice of termination of the contract
fully in line with the terms of that contract. That
would mean that
his employment automatically came to an end on 8 May 2014, which is
when the term of the contract expired. In turn,
this means the
applicant was not dismissed.
[33]
It is
because of the above clear facts that the applicant sought to rely on
two contentions to try and contradict the contract,
its application,
and the consequences of its application. The first is the alleged
notice of end of contract in November 2013,
which according to the
applicant meant that he continued to work after the end November 2013
without any fixed term contract.
The second contention is the
promise / offer of employment on the Shondoni contract allegedly made
to him, which according to the
applicant was a new permanent contract
and he was thus dismissed from this permanent contract.
[34]
Dealing
with the alleged notice of end of contract given the applicant on 1
November 2013, I have little hesitation in rejecting
this contention.
There was no proper evidence of the applicant ever being given such a
notice. The first respondent discovered
all the end of contract
notices given at the end of 2013 to the employees on the Thubelisha
contract. It is clear to me that there
were indeed two batches of
notices, being batch A and batch B. A simple consideration of these
notices show that all batch A notices
were not signed by any of the
employees concerned, whilst all the batch B notices were signed by
the employees. This fully corresponds
with the first respondent’s
version that the batch A notices were prepared but never issued to
the employees concerned, whilst
the batch B notices were at the same
time prepared and then indeed issued to the employees concerned. The
explanation by the first
respondent for this was that because the
work of the batch A employees was not finished, this is why the
notices were not issued.
The first respondent’s version in this
respect made complete sense, and is in my view the true and correct
version.
It was in any event uncontradicted.
[35]
But
added to that, the applicant had said that he was given an end of
contract notice on 1 November 2013, in terms of which his
employment
would end at the end of November 2013. The applicant said
‘nothing happened’ in October 2013.
But the
applicant provided no such notice. There is no evidence of any end of
contract notices ever being issued on 1 November
2013. This version
is also contradicted by the actual end of contract notices discovered
by the first respondent, as referred to
above, which was undisputed,
and which reflects that all the notices were dated 1 October 2013 and
those in batch B that were issued
with notice were issued with the
notices on the same date. In short, there were no November 2013 end
of contract notices. This
material contradiction further confirms why
the first respondent’s version in this respect was indeed the
true and correct
one, and that of the applicant untruthful.
[36]
The
aforesaid means that the applicant was never issued with an end of
contract notice in 2013. He remained working on the
contract
throughout 2013 and into 2014, because his work on the contract was
not completed. The contract clearly continued to exist.
He was issued
with an end of contract notice on 8 April 2014 when his work on the
contract finished. I may add that those employees
in batch B whose
work finished in 2013, and who did receive end of contract notices
then, indeed left at the end of October 2013.
As a result, there is
no merit in the case advanced by the applicant that he continued to
work after his contract ended on 30 November
2013, on the basis of a
contract other than a fixed term contract, for the simple reason that
the contract never ended. The notice
of end of contract on 8 April
2014 was therefore entirely legitimate and valid, and issued in line
with the still existing fixed
term contract (‘the contract’)
when the applicant’s work on the Thubelisha contract actually
concluded.
[37]
The
above means, in a nutshell, that there was no dismissal as
contemplated by Section 186(1) of the LRA. In
Enforce
Security Group v Fikile and Others
[13]
the Court said:
‘
It
is clear from the wording of s 186(1) above that there are
specifically defined instances that bring about the termination of
employment I which would be regarded as dismissal. This means
therefore that an employment contract can be terminated in a number
of ways which do not constitute a dismissal as defined in s 186(1) of
the LRA. One such instance would be a fixed-term employment
contract
entered into for a specific period or upon the happening of a
particular event. An event that comes to mind would include
a
conclusion of a project or the cancellation or expiry of a contract
between an employer and a third party. Once the event agreed
to
between an employer and its employee takes place or materialises,
there would ordinarily be no dismissal. It has been the position
in
common law that the expiry of a fixed-term contract of employment
does not constitute termination of the contract by any of
the
parties. It constituted an automatic termination of the contract by
operation of law and not a dismissal …’
[38]
The
Court in
Enforce
Security
[14]
referred with approval to the following
dictum
from the judgment in
Sindane
v Prestige Cleaning Services
[15]
:
‘
It
is accepted that apart from a resignation by an employee (unless
constructive dismissal is claimed consequent to resignation),
an
employment contract can be terminated in a number of ways which do
not constitute a dismissal as defined in s 186(1) of the
LRA, and
more particularly, in terms of s 186(1)
(a)
.
These circumstances include the following: (i) the death of the
employee; (ii) the natural expiry of a fixed-term employment contract
entered into for a specific period, or upon the happening of a
particular event, eg the conclusion of a project or contract between
an employer and a third party. In the first instance, if the
fixed-term employment contract is, for example, entered into for a
period of six months with a contractual stipulation that the contract
will automatically terminate on the expiry date, the fixed-term
employment contract will naturally terminate on such expiry date, and
the termination thereof will not (necessarily) (subject to
what is
stated below in respect of the remedies provided for by the LRA to an
employee who has signed such a contract) constitute
a “dismissal”,
as the termination thereof has not been occasioned by an act of the
employer. In other words, the proximate
cause of the termination of
employment is not an act by the employer. The same holds true for a
fixed-term employment contract
linked to the completion of a project
or building contract. These fixed-term employment contracts are
typical in circumstances
where it is not possible to agree on a fixed
time period of employment, ie a definitive start and end date, as it
is not certain
on what exact date the project or building contract
will be completed, and hence, the termination date is stipulated to
be the
completion date of the project or building contract. Similarly
as in a fixed-term employment contract with a stipulated time period,
when a fixed-term employment contract linked to the completion of a
project or building contract terminates, such termination will
not
(necessarily) be construed to be a dismissal as contemplated in s
186(1)
(a)
.
Thus, the contract terminates automatically when the termination date
arrives, otherwise, it is no longer a fixed-term contract
… It
must, however, be pointed out that the LRA does provide a remedy to
an employee who has entered into fixed-term employment
contracts as
referred to in s 186(1)
(b)
of the LRA in terms whereof an employee, who 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, can claim a dismissal
occasioned thereby. In such a case the “act” of the
employer which is the failure or refusal to renew the fixed-term
employment contract on the same or similar terms, or to renew it at
all is the proximate cause of the dismissal. …
’
[39]
Although
not specifically dealt with in the award of the second respondent, it
is now trite that these kind of fixed term employment
contracts and
the automatic expiry thereof upon the expiry of a period or the
occurrence of an event, is entirely legitimate, and
in line with the
LRA.
[16]
As said in
Nongcantsi
v Mnquma Local Municipality and Others
[17]
:
‘…
A
conditional contract of employment is a commercial reality. The LRA
is not against such contracts. …
’
[40]
The
Court in
Enforce
Security
dealt with contractual provisions very similar to the provisions of
the contract
in
casu
.
In comparison, and on the facts in
Enforce
Security
[18]
,
the
end of the fixed term was defined by the completion of a specified
task, being the termination of what was called the Boardwalk
contract, which was a contract between the employer, and its client,
Boardwalk. The employees were employed specifically for the
contract
between the employer and Boardwalk. The termination of the Boardwalk
contract was an agreed defined event that would give
rise to
automatic termination of the employment contracts. As stated, this is
virtually on all fours with what is now before me.
Based on
these facts, the Court in
Enforce
Security
concluded:
[19]
‘
In
this case clause 3.2(i) provides that ‘the period of employment
would endure until the termination of the contract …
[with]
Boardwalk’. This clause is in my view sufficient on its own to
convey that it is a fixed-term contract that will run
until the
contract with the client is terminated. The fact that clause 3.2(ii)
provides that ‘the employee agrees that …
the contract
of employment shall terminate automatically [upon termination of the
Boardwalk contract and that such] termination
shall not be construed
as a retrenchment but a completion of contract’ does not, in my
view, render a termination of the
contract of employment upon
termination of the contract with Boardwalk to be something else. It
may merely serve to amplify the
consequences of the agreed terms. The
clause itself does not constitute termination of the employment
agreement. The affected employees
are free to challenge the
termination if it does fall within the exclusions in s 5(4) of the
LRA. They may also challenge the termination
of their employment in
terms of s 186(1)
(b)
.
… It does not follow that the inclusion in a contract of
employment of a clause similar to the one in this case should
automatically render a termination of that contract, based solely on
its legitimate terms, a dismissal. That would in my view defeat
the
whole purpose of concluding fixed-term contracts concluded for
legitimate reasons.
’
[41]
Applying the aforesaid
principles, the applicant’s fixed term contract of employment
thus automatically terminated on 8 May
2014. The notice of 8
April 2014 was nothing else but a notification to the applicant
specifically referring to the terms
of the contract he had agreed to,
and the fact that it specifically provided for the automatic
termination of the contract upon
completion of the work at
Thubelisha,
which completion on the common cause evidence indeed happened. This
is clearly a fixed term contract for a legitimate
reason, which is
consistent with the provisions of the LRA. All thus said, the
applicant
was not
dismissed. The first part of the applicant’s case must
therefore fail.
[42]
Turning
next to the second part of the applicant’s case, being the
alleged promise or offer of permanent employment on the
Shondoni
contract made to him when the contract on the Thubelisha project
finished, the applicant similarly faces a number of obstacles.
The
first obstacle is a legal one. Such a promise or offer cannot
change the underlying nature of the contract. In simple
terms, the
promise or offer does not change what is a fixed term contract of
employment into a permanent contract of employment.
It also does not
change the fact that the contract automatically terminates when the
applicant’s work ends on the Thubelisha
contract. All that this
promise or offer can achieve is to possibly prove an act of dismissal
as contemplated by Section 186(1)(b),
which Section provides:
‘”
Dismissal"
means that — (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.
'
[43]
The
applicant’s case was that he was dismissed on 8 May 2014. The
arbitration award was handed down end December 2014. This
all took
place prior to the amendment to Section 186(1)(b) of the LRA.
[20]
The amendment of Section 186(1)(b) of the LRA has no retrospective
application, and can only apply to disputes that arise
as from 1
January 2015. In
Unitrans
Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman, National
Transport Commission, and Others; Transnet Ltd (Autonet
Division) v
Chairman, National Transport Commission, and Others,
[21]
the
Court said:
‘
...
no
statute is to be construed as having retrospective operation (in the
sense of taking away or impairing a vested right acquired
under
existing laws), unless the Legislature clearly intended the statute
to have that effect (see also, inter alia,
Bartman
v Dempers
1952 (2) SA 577
(A)
at
580C). …’
Similarly,
and in
Bellairs
v Hodnett and Another
[22]
the Court
held:
‘
There
is a general presumption against a statute being construed as having
retroactive effect and even where a statutory provision
is expressly
stated to be retrospective in its operation it is an accepted rule
that, in the absence of a contrary intention appearing
from the
statute, it is not treated as affecting completed transactions and
matters which are the subject of pending litigation.
'
[44]
The
Labour Court in
Fouldien
and Others v House of Trucks (Pty) Ltd
[23]
had
the opportunity to consider the issue of the retrospectivity of an
earlier amendment of the LRA in 2002, and said the following:
‘
The
rules of interpretation of statutes regarding the operation, ie the
retrospectivity or prospectivity of amendments to statutes,
have been
crystallized. These rules which are of particular importance to this
matter, may be summarized as follows:
1
No
statute is to be construed as having retrospective operation. See
Petersen
v Cuthbert
1945 AD 420
at 430.
2
The
presumption against retrospectivity addresses 'elementary
considerations of fairness [which] dictate that individuals should
have an opportunity to know what the law is and to conform their
conduct accordingly'. Per Steven, J in
Landgraf
v USI Film Products
et al
[1994] USSC 10
;
511 US 244
(1994) at 265. This passage was cited with approval
in
National
Director of Public Prosecutions v Carolus and Others
2000 (1) SA 1127
(SCA) at 1139C-D.
3
Even
a statute, which is expressly stated to be retrospective, is not to
be treated as affecting matters which are the subject of
pending
litigation, save in the absence of a clear indication to the
contrary. See
Bellairs
v Hodnett and Another
1978 (1) SA 1109
(A) at 1148F.
4
A
distinction is made between true retrospectivity, ie where an Act
provides that from a past date, the new Act or amendment is
deemed to
have been in operation and cases where the question is merely whether
a new statute or an amendment of a statute interferes
with or is
applicable to existing rights. ….
5
Where
the court is left in doubt it should favour an approach to the law
which is conservative. …’
[45]
Therefore,
it is clear that the amendments to the LRA effective 1 January 2015
has, as I have said, no retrospective operation.
This means that if
Section 186(1)(b) is to be considered in this case, it can only be
done on the basis of Section 186(1)(b) as
it stood prior to the 1
January 2015 amendment.
[46]
Turning
then to Section 186(1)(b), the applicant faces an insurmountable
obstacle, being that he did not pursue a case that he was
dismissed
as contemplated by Section 186(1)(b). His case was that he was
dismissed on the basis of Section 186(1)(a)
[24]
.
This is evident from his evidence in the arbitration, as well as from
the very first paragraph of the written submissions he presented
to
the second respondent at the conclusion of the arbitration, which
reads: ‘
The
Applicant’s claim is founded on section 186(1)(a) of the Labour
Relations Act …
’
.
In
De
Milander
[25]
the Court said:
‘…
The
question whether the employer's failure to renew the fixed-term
contract of employment constitutes a dismissal within the meaning
of
s 186 (1)
(b)
is a legal one. In other words the commissioner hearing the matter is
called upon to determine the conclusion of law. It is therefore
incumbent upon an employee who brings an unfair dismissal dispute in
terms of s 186 (1)
(b)
to
set out the material facts upon which he relies for the conclusion of
law he wishes the commissioner to draw from those facts
and it will
not be sufficient, therefore, to plead a conclusion of law without
pleading the material facts giving rise to it. The
mere ipse dixit of
an employee, without further evidence, is not sufficient. The setting
of this standard will prevent the opening
of the floodgates for large
numbers of other cases involving claims based on s 186 (1)
(b)
.’
[47]
It
was therefore incumbent upon the applicant to have pertinently raised
and pleaded a case of dismissal based on Section 186(1)(b)
in the
arbitration proceedings before the second respondent.
[26]
His failure to do so must be fatal to him being able to establish
that he was dismissed. This is so, because it has already been
established that there is no dismissal as contemplated by Section
186(1)(a).
[48]
It
is in fact precisely for the reason that the expiry of a fixed term
contract of employment would ordinarily not be a dismissal
that
Section 186(1)(b) was introduced into the LRA. This gives the
employee the opportunity to still contend that he or she has
been
dismissed, even though the reality is that there was indeed a fixed
term contract in existence which expired. But in order
to prove such
a dismissal as contemplated by Section 186(1)(b), the employee party
must of course rely on such Section, bring a
dismissal case in terms
of such Section, and satisfy the requirements to establish a
dismissal under that Section. These requirements
are, as summarized
in
De
Milander
[27]
:
‘
The
test whether or not an employee has discharged the onus is objective,
namely, whether a reasonable employee would, in the circumstances
prevailing at the time, have expected the employer to renew his or
her fixed-term contract on the same or similar conditions.
’
The
Court concluded:
[28]
‘…
In
order to assess the correctness of Mr
Le
Roux's
contention that the appellant had a reasonable expectation that her
contract would be renewed and that the MEC's failure to renew
it
constituted a dismissal, it is first necessary to determine whether
she in fact expected her contract to be renewed, which is
the
subjective element. Secondly, if she did have such an expectation,
whether taking into account all the facts, that expectation
was
reasonable, which is the objective element. Whether or not her
expectation was reasonable will depend on whether it was actually
and
genuinely entertained …
’
[49]
In
casu
,
and as I have said, the applicant has made out no such case. The
applicant has in fact never said that he expected his fixed term
contract to be renewed. He has said that he was promised a new and
permanent job. Also, the applicant, even if it can be said that
he
had a subjective expectation of remaining employed, there was a
complete and utter failure on his part to prove this expectation
was
reasonable, especially considering that the applicant was not
truthful about receiving a termination notice in November 2013,
that
the person who made him the promise of employment at another site was
not in control of that site and did not have the power
to make such a
promise, that no recruitment processes for the new site had been
followed, and that no actual contract had been
concluded. In the end,
and simply put, the promise of a permanent job is not an expectation
of the renewal of the fixed term contract,
which is one of the
reasons for the addition of Section 186(1)(b)(ii) in order to cater
for this kind of eventuality. This was
recognized in
University
of Pretoria v Commission for Conciliation, Mediation and Arbitration
and Others
[29]
where the Court said:
‘
The
words employed in s 186 envisage that two requirements must be met in
order for an employer's action to constitute a dismissal:
(1)
a
reasonable expectation on the part of the employee that a fixed-term
contract on the same or similar terms will be renewed; and
(2)
a
failure by the employer to renew the contract on the same terms or a
failure to renew it at all.
’
The
Court considered what was then the proposed amendments to the LRA,
and in particular the proposed amendment to Section 186(1)(b),
and
said:
[30]
‘…
The
draft therefore makes a clear distinction between an expectation to
renew a fixed-term contract and the offer of an indefinite
contract
of employment.
The
facts of this case illustrate this distinction. Third respondent
enjoyed seven fixed-term contracts prior to her application
for a
permanent position. In this case, she chose 'to put her hat in the
ring' for a permanent appointment. In other words, her
own conduct
illustrates the distinction between the expectation of the renewal of
a fixed-term contract and another form of contract,
in this case a
permanent post. Had she not been offered a further fixed-term
contract, then depending on the evidence, she could
be entitled to
proceed in terms of s 186 (1)
(b)
.
That would, however, not be a case based, as is this one, on a
different form of employment, being a permanent contract. …
’
Identical
considerations would clearly apply to the matter now before me. The
applicant’s case of being promised a permanent
position on the
Shondoni contract, which then did not materialize, can simply not
constitute a dismissal as contemplated by Section
186(1)(b) of the
LRA. Again, that should in reality be the end of the matter for
the applicant
[50]
Even
if I consider the applicant’s case of a promise or offer made
by the first respondent, this case on the merits thereof
in any event
has no substance. The applicant testified that the promise /
offer was made to him by Sinclair. It is
true that Sinclair
never testified to contradict this version of the applicant, so one
had to consider this part of the applicant’s
case based on his
testimony. Should it be accepted that Sinclair indeed made this
promise or offer, the difficulty the applicant
still faces (which the
second respondent actually appreciated) is that it was common cause
that Sinclair never had the power to
make such a promise or offer,
and in fact could not do so. The testimony by the first respondent’s
witnesses, that it was
imperative that proper recruitment processes
be followed for any permanent appointments, remained undisputed.
This means
that whatever Sinclair may have said to the applicant,
simply cannot bind the first respondent. The situation
in
casu
is comparable to what transpired in
Amplats
Management Services (Pty) Ltd v Van Jaarsveld
[31]
,
and in that judgment the Court dealt with the issue as follows:
[32]
‘
Menne
undoubtedly had authority to enter into a contract of secondment with
the respondent (and with Rustenburg Platinum Mines).
This was
confirmed by Emmett. But he clearly had no authority to bind the
appellant to the contract of employment which, it is
alleged, he
entered into with the respondent. Menne was a senior member of staff,
he knew full well the procedures involved for
the appointment of
personnel to head office and the need for such appointments to be
approved by the ADCO. … In these circumstances,
it is most
unlikely that he would ever have purported to bind the appellant in
the manner alleged by the respondent. The probabilities
are
overwhelming that he would have done no more than express a view,
however strongly, that at the end of the secondment period
the
respondent was likely to be appointed or that he, Menne, would use
his best endeavours to procure an appointment for the respondent.
On
the respondent's case Menne would have had to deliberately exceed his
authority knowing full well what the appointment procedures
were.
This is unlikely, to say the least.
’
Similar
considerations clearly apply
in
casu
.
[51]
Insofar
as the applicant may rely on the contention that the first respondent
is somehow prohibited from relying on the lack of
authority of
Sinclair, or the need to have followed proper recruitment processes,
this would be nothing else but a case of estoppel.
That being so, the
difficulty the applicant has is that a case of estoppel was never
pleaded or made out in evidence.
In
Concor
Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter
[33]
the
requirements for establishing estoppel were enunciated as follows:
‘
Our
law is that a person may be bound by a representation constituted by
conduct if the representor should reasonably have expected
that the
representee might be misled by his conduct and if in addition the
representee acted reasonably in construing the representation
in the
sense in which the representee did so.
'
Applying
the
dictum
in
Concor
Holdings
,
the Court in
Bester
NO and Others v Schmidt Bou Ontwikkelings CC
[34]
said:
‘
Broadly
stated, the concept of estoppel, borrowed from English law as applied
by our courts, amounts to this: when a person (the
representor) has
by words or conduct made a representation to another (the
representee) and the latter acted upon the representation
to his or
her detriment, the representor is estopped, that is precluded, from
denying the truth of the representation (see eg
Union
Government v Vianini Ferro-Concrete Pipes (Pty) Ltd
1941 AD 43
at 49).
’
[52]
It
is however a fundamental principle that where it comes to any
consideration of estoppel by the Court, it must be specifically
pleaded by one of the parties. This was dealt with in
Absa
Bank Limited v IW Blumberg and Wilkinson
[35]
as
follows:
‘
Plainly
a party wishing to rely on estoppel must plead it and prove its
essentials ….’
.
And
in
Maluti
Transport Corporation Ltd v MRTAWU and Others
[36]
it was said:
‘
It
is trite that an estoppel must be pleaded. At the very least it must
be debated in cross-examination. ….
’
.
[53]
The
applicant never, in the arbitration, pleaded or sought to rely on
estoppel. He never, despite being legally represented,
debated
the issue with the witnesses for the first respondent under cross
examination. As such, this is simply not a competent
consideration in
this matter.
[54]
The
applicant did seek to contend that he acted to his prejudice because
of the conduct of the first respondent in not ultimately
offering him
the promised position on the Shondoni contract, in that he turned
down a permanent job offer from Sasol. Presumably,
this is raised in
the context of seeking to establish prejudice as part of an estoppel
consideration. The applicant’s case
in this respect is
contrived and unsustainable. The immediate answer to this is his own
testimony. It was clear that the offer
from Sasol was for far less
than what he earned at the first respondent. He made it clear in the
arbitration that we would not
be willing to work for this money, and
specifically uttered in Afrikaans
“
ek
sal nie vir daardie fokken geld kan werk nie”.
It
can thus hardly be legitimately said that he turned down the offer
because of what the first respondent may, or may not, have
said to
him about future work.
[55]
I
shall next consider the actual testimony of the applicant about what
this alleged offer or promise to him in fact entailed. The
complete
lack of particularity in this promise or offer, where it comes to any
of the
essentialia
of the employment contract, is a critical consideration. The high
water mark of the applicant’s own testimony is that he
was
promised permanent employment on the Shondoni contract. But
there is no evidence as to what position he was going to
occupy, what
he would be paid, what benefits he would enjoy, where he would live,
what his working hours would be, and in fact
when he would even start
working there. In any offer or promise of permanent employment,
susceptible to being accepted by an employee
and so become
enforceable against the employer, at least deal with all these
essential requirements must be dealt with.
[56]
The
applicant testified that he declined the offer at Sasol because the
money he was offered by the first respondent was ‘better’
that what he would get at Sasol. But not once could the applicant
even show what he was allegedly offered by the first respondent
as a
salary to work on the Shondoni contract. He testified that
salary was never discussed. He conceded there was no written
offer or
contract. Considering the testimony of the applicant about the reason
why he did not accept the Sasol offer, as discussed
above, I simply
do not accept that the applicant was ever offered any salary amount
by the first respondent, and thus one of the
central
essentialia
of any employment contract was always absent. As held in
Wienand
v Pharma Natura (Pty) Ltd and Others
[37]
:
‘…
what
is important as an essential element of a contract of employment , is
that there must be an agreement on the remuneration payable.
’
[57]
In
short, the applicant is relying on a promise of a permanent job.
But this falls far short of establishing a case that he
would be
entitled to it. The applicant needed to show that he and
Sinclair achieved consensus on all the material terms of
this job, as
I have set out above. In the absence of this being shown,
nothing binding could have been agreed to between
the applicant, and
Sinclair, and that would the end of his case.
[58]
In
summary, the applicant failed to prove that he was dismissed as
contemplated by Section 186(1)(a) of the LRA. The applicant’s
fixed term contract of employment had expired at the end of its term,
and his employment consequently had automatically come to
an end.
Insofar as the applicant sought to rely on a promise or offer of
alternative employment made the first respondent, this
was ill
conceived as Sinclair did not have the authority or power to make
such a promise or offer, the prescribed recruitment processes
were
never followed, and the applicant in any event did not pursue or make
out a case as contemplated by Section 186(1)(b) of the
LRA.
Finally, a proper offer of alternative employment was not even proven
by the applicant.
[59]
All
being said, the award of the second respondent was thus correct. The
second respondent properly considered the evidence and
all the
applicable legal principles. The second respondent’s award must
thus be sustained, and the applicant’s review
application falls
to be dismissed.
[60]
This
then only leaves the issue of costs. In terms of Section 162 of the
LRA, I have a wide discretion where it comes to the issue
of costs. I
do not think the applicant acted unreasonably in wanting to pursue
his matter to finality, in the Labour Court. After
all, this was an
issue of jurisdiction, which the Labour Court finally had to decide.
Therefore, and although the applicant was
not successful, I consider
it to be in the interest of fairness that no costs order be made.
Order
[61]
In
the premises, I make the following order:
1.
The
applicant’s review application is dismissed.
2.
There
is no order as to costs.
_____________________
S.Snyman
Acting Judge of
the Labour Court
Appearances:
For the
Applicant: Adv E Loyson
Instructed by:
Cronje De Waal Skhosana Inc Attorneys
For the First
Respondent: Mr F Malan of ENS Africa Attorneys
[1]
Act
66 of 1995.
[2]
(2015)
36 ILJ 3111 (LC) at para 14.
[3]
(2008)
29 ILJ 964 (LAC) at para 101.
[4]
(2007)
28 ILJ 2405 (CC).
[5]
(1999)
20 ILJ 108 (LAC) at para 6.
[6]
(2008)
29
ILJ
2218
(LAC)
at paras 39 – 40.
[7]
(2013)
34
ILJ
2662 (LC) at para 22.
[8]
See
Asara
Wine Estate and Hotel (Pty) Ltd v Van Rooyen and Others
(2012)
33
ILJ
363 (LC) at para 23;
Hickman
v Tsatsimpe NO and Others
(2012)
33
ILJ
1179 (LC) at para 10;
Protect
a Partner (Pty) Ltd v Machaba-Abiodun and Others
(2013)
34
ILJ
392 (LC) at paras 5–6;
Gubevu
Security Group (Pty) Ltd v Ruggiero NO and Others
(2012)
33
ILJ
1171 (LC) at para 14;
Workforce
Group (Pty) Ltd v CCMA and Others
(2012)
33
ILJ
738
(LC)
at para 2;
Stars
Away International Airlines (Pty) Ltd t/a Stars Away Aviation v Thee
NO and Others
(2013)
34
ILJ
1272
(LC) at para 21;
Mnguti
(
supra
)
at para 20.
[9]
(2013)
34 ILJ 1427 (LAC) at para 24.
[10]
See
Brodie
v Commission for Conciliation, Mediation and Arbitration and Others
(2013)
34 ILJ 608 (LC) at para 33;
Sonqoba
Security Services MP (Pty) Ltd v Motor Transport Workers Union
(2011)
32 ILJ 730 (LC) at para 9;
De
Beer v Minister of Safety and Security and Another
(2011)
32 ILJ 2506 (LC) at para 27.
[11]
(2010)
31 ILJ 713 (LC) at para 27.
[12]
See
Section 192(1) which reads:
‘
In
any proceedings concerning any dismissal, the employee must
establish the existence of the dismissal’. See also
De
Milander
(
supra
)
at para 25;
Nongcantsi
v Mnquma Local Municipality and Others
(2017)
38 ILJ 595 (LAC) at para 18;
Mnguti
(
supra
)
at para 21.
[13]
(2017)
38 ILJ 1041 (LAC) at para 18.
[14]
(supra)
at para 18
[15]
(2010)
31
ILJ
733 (LC)
at
para 16.
[16]
See
Enforce
Security
(
supra
)
at para 20;
Fedlife
Assurance Ltd v Wolfaardt
(2001)
22
ILJ
2407 (SCA)
at
paras 17-18.
[17]
(2017)
38 ILJ 595 (LAC) at para 36.
[18]
See para
23 of the judgment.
[19]
Id at
para 42.
[20]
The
Section was amended by Section
30
(a)
of Act 6 of 2014 with effect from 1 January 2015), and added the
following as Section 186(1)(b)(ii): ‘to retain the
employee
in employment on an indefinite basis but otherwise on the same or
similar terms as the fixed-term contract, but the employer
offered
to retain the
employee
on less favourable terms, or did not offer to retain the
employee’
[21]
1999
(4) SA 1
(SCA) at paras 12 – 13.
[22]
1978 (1)
SA 1109
(A) at 1148F-G.
[23]
(2002)
23
ILJ
2259 (LC) at para 9. See also
Bandat
v De Kock and Another
(2015)
36 ILJ 979 (LC) at para 14.
[24]
The
Section r
eads:
‘”Dismissal”
means
that-
(a)
an
employer has terminated a contract of employment with or without
notice …’
[25]
(
supra
)
at para 35.
[26]
Compare
United
People's Union of SA on behalf of Khumalo v Maxiprest Tyres (Pty)
Ltd
(2009)
30 ILJ 1379 (LC) at paras 42 and 52;
Bandat
v De Kock and Another
(2015) 36 ILJ 979 (LC) at para 30;
SA
Transport and Allied Workers Union v Old Mutual Life Assurance Co SA
Ltd
(2005) 26 ILJ 293 (LC) at para 112;
Owen
and Others v Department of Health, KwaZulu-Natal
(2009) 30 ILJ 2461 (LC) at 2466.
[27]
(
supra
)
at para 26.
[28]
Id at
para 29.
[29]
(2012)
33 ILJ 183 (LAC) at para 18.
[30]
Id at
paras 19 – 20.
[31]
(2007)
28 ILJ 2669 (SCA)
[32]
Id at
para 13.
[33]
2004
(6) SA 491
(SCA)
at
para 7
[34]
2013
(1) SA 125
(SCA) at para 17. See also
Van
Deventer v Ivory Sun Trading 77 (Pty) Ltd
2015 (3) SA 532
(SCA) at para 44;
Oriental
Products (Pty) Ltd v Pegma 178 Investments Trading CC and
Others
2011
(2) SA 508
(SCA)
at
para 19.
[35]
[1997] ZASCA 15
;
1997
(3) SA 669
(SCA) at 681G-H.
[36]
[1999]
9 BLLR 887
(LAC) at para 57.
[37]
(2013)
34 ILJ 1012 (LC) at para 17. See also
Northern
Cape Provincial Administration v Commissioner Hambidge NO and Others
(1999)
20
ILJ
1910 (LC)
at
para 13;
SA
Post Office Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2012) 33 ILJ 2970 (LC) at para 21;
Aucamp
v SA Revenue Service
(2014) 35 ILJ 1217 (LC) at para 26.