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[2018] ZALCJHB 167
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Rukungira v Mqingwana NO and Others (JR22/16) [2018] ZALCJHB 167 (8 May 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JR 22/16
In
the matter between:
JANOT
RUKUNGIRA
Applicant
and
Z
MQINGWANA
N.O
First
respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
EFERTON
SERVICES (PTY)
LTD
Third Respondent
Heard:
15 November 2017
Delivered:
08 May 2018
JUDGMENT
MAMOSEBO.
AJ
Introduction
[1]
This
is an application in terms of s 145 read with s158(1)(g) of the
Labour Relations Act
[1]
(the
‘LRA’) to review and set aside a ruling made by the first
respondent, Commissioner Z Mqingwana, dated 11 December
2015 under
case number GAJB22849-15 in which she found that:
1.1
The
applicant, Janot Rakungira, was not dismissed as his fixed-term
contract of employment had expired;
1.2
The
applicant had not established a reasonable expectation of the renewal
of the fixed term contract; and
1.3
The
second respondent, the Commission for Conciliation, Mediation and
Arbitration (‘CCMA’) lacked jurisdiction to arbitrate
the
matter.
The
application is opposed by the third respondent only.
[2]
The
dispute before the commissioner concerned an alleged unfair dismissal
of the applicant by Eferton Services (Pty) Ltd (Eferton),
the third
respondent. The applicant claimed that no proper procedures or any
valid reason existed for his dismissal. He therefore
bore the
onus
to prove his alleged dismissal.
[3]
The
applicant testified that at first he was offered a written contract
through a recruitment agent in terms of which his salary
would be
R55 000 on a fixed term contract of three months. He testified
further that he raised concerns with regards to same
as it was not a
permanent contract of employment. A second revised fixed term
contract was furnished to him reflecting the applicant’s
non-pensionable salary of R57 500.00 (cost to company) and in
the event the contract is replaced by a permanent contract the
salary
would increase to R60 000.00. The applicant signed the revised
contract on 30 July 2015 and commenced working for Eferton
on 11
August 2015. The period of the fixed term contract was for the period
of 1 August 2015 to 31 October 2015.
[4]
The
applicant was informed on 19 October 2015 that the fixed term
contract will not be renewed. This was followed by a letter addressed
to him dated 23 October 2015, signed by Carl Els, the Human Resources
Manager, highlighting the following clauses of his fixed
term
contract of employment:
“
TERMINATION
OF FIXED TERM CONTRACT OF EMPLOYMENT
1.
The
above matter and the fixed term contract of employment (hereinafter
referred to as the “Agreement”) duly entered
into between
yourself and Eferton Services Proprietary Limited (hereinafter
referred to as the “Company”) on 01 August
2015 refers.
2.
In
accordance with the provisions of the agreement, and more
specifically clauses 2.2, 2.4, and 2.5, the Company hereby wishes to
confirm that the Agreement shall terminate with effect from 31
October 2015. The Company shall provide you with a certificate of
employment, on your last working day, which shall be on the 30
th
of October 2015.
3.
We
thank you for the services you have rendered for the duration of the
Agreement and wish you well in all your future endeavours”
[5]
A
copy of the fixed term contract entered into between the Company and
the applicant also formed part of the evidence before the
commissioner. Clauses 2.2, 2.4 and 2.5 read:
“
2.2
This employment contract will terminate on completion of the fixed
term, 31 October 2015, subject
to the conditions and terms outlined
in the paragraph Termination of Employment below.
2.4
… However the employee will not have any expectation of
whatsoever nature and howsoever
arising of employment beyond the end
date of this contract. Even in circumstances where this contract is
extended or renewed, it
is agreed that such extension or renewal will
not create any expectation of whatsoever nature that the employment
will again be
extended.
2.5
The company will endeavour to make a best effort to notify the
employee of an intended
termination of the contract at least
one week ahead of the termination date, subject to the
conditions 7.2 under
“
Termination
of Employment.”
[6]
The
applicant disputed that the 3-month period was a fixed term contract
but a probation period. His passport had expired and this
aspect was
not disclosed during the interview. He applied for its renewal on 04
August 2015 and was issued with a new passport
on 13 October 2015.
Although possession of a valid passport which would enable him to
travel to the Democratic Republic of Congo
(DRC) was an inherent
requirement of the job, that was not the basis of his dismissal. The
commissioner found that the employment
was terminated on 30 October
2015 because his fixed term contract had expired. The applicant, who
represented himself during the
arbitration, kept referring in his
testimony to Ms Jacqui Freeman, the recruitment agent from Powerhouse
Appointments, who placed
him in employment with the third respondent.
[7]
In
particular, that Ms Freeman can confirm that his contract was
considered as a 3 months’ probation period intended to be
a
permanent contract. The commissioner enquired from him if he would
require that Ms Freeman be subpoenaed and advised him on steps
he
could follow should he require assistance in that regard. However, in
the end, Ms Freeman was never called as a witness.
[8]
The
issue which stood for determination before the commissioner was
whether the non-renewal of the applicant’s fixed term
contract
constituted a dismissal as envisaged in s 192 (1) of the LRA.
[9]
In
Jonsson
Uniform Solutions (Pty) Ltd v Lynette Brown and Others
[2]
the Labour Appeal Court (LAC) clarified the applicable test in
jurisdictional rulings as follows:
“
The issues
in dispute will determine whether the one or the other of the review
tests is harnessed in order to resolve the dispute.
In matters where
the factual finding of an arbitrator is challenged on review, the
reasonable decision-maker standard should be
applied. Where the legal
or jurisdictional findings of an arbitrator are challenged the
correctness standard should be applied.
There will, however, be
situations where the legal issues are inextricably linked to the
facts so that the reasonable decision-maker
standard could be
applied.”
[10]
In
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and
Others
[3]
the LAC made the following instructive pronouncement:
“
[39] 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 section 191
of the Act.
[40] 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.
[41] The
question before the court a quo was whether on the facts of the case
a dismissal had taken place. The question was
not whether the finding
of the commissioner that there had been a dismissal of the three
players was justifiable, rational or reasonable.
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.” Also see
South
African Police Service v Naidoo and Others
[4]
.”
[10]
There are two versions in respect of the nature of the contract that
the commissioner had to consider. The applicant’s
averment was
that he was employed on a permanent basis subject to a three months’
probationary period. He was dismissed at
the end of the probation
period which makes the dismissal unfair both procedurally and
substantively. Eferton argued that the contract
was for a fixed term
which was not extended following its expiry date on 31 October 2015.
[11]
The commissioner considered that the
onus
to prove dismissal
rested on the applicant. She also had regard to the applicant’s
argument in respect of his alleged permanent
employment. She was
convinced that the applicant relied on what was said by the
recruitment agent, who was not called to testify,
on the aspect of
permanent employment. He also did not request that the recruitment
agent be subpoenaed for that purpose but wanted
the discussions that
took place outside the signed contract to be read into the contract.
I would add that nothing stopped the
applicant from further
requesting the commissioner to subpoena one Mr Deon who allegedly
also assured him that it was company policy
to employ all new
employees on a probationary period and the same applied to him.
[12]
The commissioner was dissatisfied with the submissions by the
applicant that he was employed permanently for the following
reasons:
she found the provisions of the fixed term contract to be
unambiguous; he failed to call the recruitment agent, Ms Freeman
to
corroborate his version; he confirmed the binding nature of the
contract and that he understood its contents. The commissioner
remarked that the applicant had a tertiary qualification and was
assertive during the proceedings. She found it inconceivable that
he
would have signed a contract without agreeing to its terms.
[13]
A fixed term contract means a contract of employment which terminates
on the occurrence of a specified event; the completion
of a specified
task or project; or on a fixed date other than an employee's normal
or agreed – upon retirement age.
[14]
The new LRA amendments in respect of fixed term contracts do not
apply to employees earning more than R205 422.30 per
annum.
[5]
The commissioner can therefore not be faulted in accepting the
existence of the fixed term contract.
[15]
There is nothing in support of the averment by the applicant that his
employment was on a permanent basis. The clause that
comes close to
what he is alleging is the following:
“
in
the event that the contract is replaced by a permanent employment
upon expiry of this agreement, the non-pensionable salary will
increase to ZAR 60 000.00 per month total cost to company. This
amount includes all benefits such as medical aid and pension
fund for
which the employee is personally responsible.”
The
commissioner has correctly considered this clause and I cannot fault
her for finding that the phrase “in the event”
does not
give certainty or assurance or expectation.
[16]
I am satisfied that the applicant has failed to discharge the
onus
that there was a dismissal. He understood the contract and the risk
involved in accepting its terms. He cannot sign the contract
and
later contend that terms that are not contained therein be read into
it. The contract has a non-variation clause which requires
that any
amendments and/or variations thereto be in writing and signed by both
parties. The applicant has also failed to show that
an expectation
was created.
[17]
On the aforegoing analysis I am not persuaded that the commissioner
erred in her jurisdictional ruling. She was correct in
finding that
no employment relationship existed between the applicant and the
third respondent, therefore there was no dismissal.
She correctly
analysed the evidence before her and arrived at a reasonable outcome.
The application for the review and setting
aside of the
commissioner’s decision therefore stands to be dismissed.
[18]
In relation to costs, in my view, the requirements of law and
fairness referred to in s 162 of the LRA would be best served
if the
applicant is ordered to pay the costs of this application.
[19]
I therefore make the following order:
Order
1.
The
application for the review and setting aside of the commissioner’s
decision is dismissed with costs.
__________________
MC Mamosebo
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant:
Mr C Higgs of Higgs Attorneys
For
the third respondent:
Advocate E Tolmay
Instructed
by:
Webber Wentzel Attorneys
[1]
Act 66 of 1995 as amended.
[2]
[2014] JOL 32513
(LAC) at para 35.
[3]
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC) at paras 39 –
41; (2008) 29 ILJ 2218 (LAC).
[4]
(D673/09) [2015] ZALCD 38 (26 June
2015) at para 44.
[5]
Section 198B(2)(a).