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[2018] ZALCJHB 421
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Mofokeng and Others v Rotek and Rochson SOC Ltd (JR264/16) [2018] ZALCJHB 421 (13 December 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR264/16
In
the matter between
:
ANDRIES
MOFOKENG AND 4 OTHERS
Applicant
and
ROTEK
AND ROSCHON SOC LTD
First Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
JOYCE
NKOPANE
N.O
Third
Respondent
Heard:
25 October 2018
Delivered:
13 December 2018
Summary:
Condonation – delay could not be imputed on the applicants –
section 186(1)(b) dismissal – operational
requirement dispelled
expectations that fixed term contracts would be renewed –
prospects of success found to be deficient
to grant condonation.
JUDGMENT
NKUTHA
- NKONTWANA. J
Introduction
[1]
This is an
application for an order reviewing and setting aside the arbitration
award issued by the third respondent (commissioner)
under the
auspices of the second respondent, the Commission for Conciliation,
Mediation and Arbitration (CCMA) under case number
GAJB 6998-15,
dated 9 November 2015. The commissioner found that the applicants
failed to prove that the first respondent’s
failure to renew
their fixed term contracts of employment constitutes a dismissal in
terms of section 186(1)(b) of the Labour Relations
Act
[1]
(LRA).
[2]
The
applicants’ main ground of review is that the commissioner
committed a reviewable irregularity in that she rendered an
unreasonable award as it could not be sustained on the evidence that
was before her and the reasons given.
[3]
The first
respondent is opposing the application and raised the issue of
condonation as a point
in
limine
.
Condonation
[4]
The
applicants launched these proceedings outside the time period
prescribed in terms of section 145(1)(a) of the LRA by about eight
weeks. They are members of the National Union of Mineworkers (NUM)
and blame the NUM officials for the delay. In turn, the union
officials blame each other. According to Mr Radebe, NUM full time
shop steward at Eskom, there was a miscommunication between him
and
Mr Zwane, NUM regional official. Both thought that one had already
referred the matter and only realised in January 2016, after
the
December 2015 holidays, that the matter had not been referred.
[5]
It is trite
that where there is an unreasonable delay that is not satisfactorily
explained, the applicant’s prospects of success
are
immaterial.
[2]
The applicants in
this case disavows any role in the delay and seek to impute blame on
their representatives. In
Mashishi
v Mdladla and Others
[3]
this Court, per Van Niekerk J, reiterated that a mere issuing of
instructions to a representative is not good enough to escape
blame.
The applicant must show, over and above, that there was a constant
follow up in order to ensure proper execution of those
instructions.
[6]
In the
present case, the applicants assert that they were not aware that
their matter had not been referred on time and this was
confirmed by
Mr Radebe. Unlike in
Mashishi
[4]
,
where the delay was almost 5 years, in this instance the delay is not
that extensive.
[7]
I,
accordingly, accept that the applicants should not be blamed for the
delay hence I am inclined to consider the prospects of success.
Background
[8]
The
applicants were employed by the first respondent on fixed term
contracts that had been renewed on several instances since 2007.
The
first respondent is a construction company contracted by Eskom to
deal with infrastructure development, expansion and maintenance.
The
applicants were employed in the first respondent’s Transmission
Unit which is responsible for construction of high voltage
power
lines.
[9]
The
applicants’ fixed terms contracts were project specific and
over the years they moved from project to project. On 10 December
2014, the first respondent’s Project Manager, Mr Werner Greef
(Mr Greef), had a consultation meeting with the trade unions
representing employees, in particular the NUM. In that meeting it was
explained that the first respondent was affected by Eskom’s
budget reprioritisation which was part of the cost saving exercise it
was undertaking.
[10]
The
employees from other projects like Oribi and Rigi/Sonland were
transferred to the Lulamisa project when these projects were
cancelled. The Lulamisa project was initially a two phased project
but because of environmental issues, the second phase was deferred.
As a result, the Lulamisa project was over-resourced and running at a
loss of about 4 million Rand. Mr Greef was instructed to
institute a
restructuring process within the Transmission Unit.
[11]
The NUM
representatives agreed to the restructuring and that a principle of
Last-In-First-Out (LIFO) would be applicable within
the team
structures. According to Mr Greef, there were three teams; the
foundation team, steel team and floating team. The applicants
were in
the floating team. This was vehemently disputed by Mr Mnguni, the NUM
official, who was part of the meeting of 10 December
2014. According
to his testimony, there were only two teams and the first respondent
concocted by the third one, floating team.
The applicants were also
adamant that they were part of the foundation team.
[12]
The
applicants’ fixed term contracts were going to be terminated on
31 January 2015, but were extended for a month. On 26
January 2015,
the applicants signed new fixed term contracts that commenced on 1
February 2015 to 28 February 2015 to work on the
Lulamisa project. On
the same day, 26 January 2015, the applicants were issued with
termination letters that clearly stated that
their fixed terms
contracts would come to an end on 26 February 2015.
[13]
There was
another meeting held on 12 February 2015, wherein Mr Greef informed
the applicants that they had been selected for termination
because
they were part of the floating team and the duties they were
performing at that time did not fall within the core functions
of the
foundation and steel teams. All these positions were made redundant
and the labour broker employees were equally affected.
[14]
The
applicants’ main gripe is the fact that three of their
colleagues who were “last in” in terms of employment
by
the first respondent were never affected by the restructuring.
Evaluation
[15]
Recently,
in an unreported decision in
Dube
and 63 Others v University of Zululand and Others,
[5]
I pertinently dealt with applicable legal principles in these
instances. In summary, the Labour Appeal Court (LAC) in
Enforce
Security Group v Fikile and Others,
[6]
reaffirmed the review test in these instances as one of correctness
as opposed to reasonableness. When it comes to section 186(1)(b),
the
burden was on the applicants to show the basis of the expectation
that their contracts of employment would be renewed and the
reasonableness thereof.
[7]
[16]
Coming to
the present case, I agree with the submission by the counsel for the
first respondent that the applicants clearly misconceived
the
applicable review test as their impugn is hinged on the
reasonableness as opposed to the correctness test.
[17]
Typically,
in the construction industry there is no guarantee for job security
given the assignment bound projects. It is understandable
that for
seven years prior to the termination of applicants’ contracts
of employment the first respondent had enough work
to move them from
project to project hence their contracts were renewed with ease.
However, it is common cause that the first respondent’s
operational requirements changed in 2014.
[18]
The
commissioner was spot-on in her finding that the meeting of 10
December 2014 ought to have dispelled the applicants’
expectation that their fixed term contracts would be renewed
automatically as was the case previously. The applicants conceded
that they were aware, at least by 11 December 2014, that not all
fixed terms contracts would be renewed and that LIFO would be applied
to select those affected.
[19]
Also, on 26
January 2015, the applicant signed one-month employment contracts
specifically on the Lulamisa project and were also
issued with
notices stating that their services would terminate on 26 February
2015 straightaway. By that time, it was clear that
the first
respondent was proceeding with restructuring and they were definitely
affected. Even if the applicants were still operating
under a false
hope that their contracts of employment would be renewed, the meeting
of 12 February 2015 should have finally driven
home the fact that
they would not be returning to work after 26 February 2015.
[20]
The first
respondent’s evidence that the Lulamisa project was concluded
in March of 2015 was not seriously challenged. I agree
with the
commissioner that nothing turns on what transpired after the
conclusion of the Lulamisa project as the applicants had
already been
terminated.
[21]
In
Enforce,
[8]
the LAC
provided a crucial succory as it distinguished between an
enquiry on whether a dismissal occurred and the fairness
or otherwise
of the dismissal; stating that ‘[t]he fact that the
appellant had an option to retrench the employees
or could have
considered other options instead of relying on the automatic
termination clause cannot be used to negate the clear
terms agreed to
by the parties. Put differently, one cannot simply use the
considerations of the fairness or otherwise of a dismissal
to
determine whether an employee has been dismissed’.
Conclusion
[22]
In all the
circumstances, I am convinced that the arbitration award is
unassailable. Undoubtedly, the condonation application stands
to be
dismissed as the prospects of success are explicitly deficient.
Costs
[23]
It is trite
that costs do not follow the result in this Court, particularly, in
instances such as this one where NUM and the first
respondent are
involved in a persisting collective bargaining relationship.
[24]
In the
premises, I make the following order:
Order
1.
The
application for condonation of the late filing of the review
application is dismissed.
2.
There is no
order as to costs.
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Mr MES Makinta from ES Makinta Attorneys
For
the first respondent:
Mr D Masher from Edward Nathan Sonnenbergs Inc.
[1]
Act 66 of 1995 as amended.
[2]
Melane v Santam Insurance Co
Ltd
1962 (4) SA 531
(A);
National
Union of Mineworkers v Council for Mineral Technology
[1999] 3 BLLR 209
(LAC);
Collett
v Commission for Conciliation, Mediation and Arbitration [2014] 6
BLLR
523 (LAC);
[3]
[2018] ZALCJHB 116;
[2018] 7 BLLR 693
(LC); (2018) 39 ILJ at para 10
[4]
Supra
n 3.
[5]
(D956/17) [2018] ZALCD 22 (8 November
2018) at para 11-14.
[6]
[2017] 8 BLLR 745
(LAC) at para 16,
see also
SA Rugby (Pty) Ltd
v SARPU and Another
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC) at paras 39 – 40.
[7]
SA Rugby
above n 2 at para 44.
[8]
Supra
n 2 at para 24.