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[2019] ZALCJHB 88
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Njikelana v Kruger NO and Others (JR1834/17) [2019] ZALCJHB 88; (2019) 40 ILJ 2380 (LC) (7 May 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
c
ase
no
: JR1834/17
In
the matter between:
PAMELA
NOMAWETHU NJIKELANA Applicant
and
WERNER
KRUGER,
N.O
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second
Respondent
SOUTH
AFRICAN CIVIL AVIATION AUTHORITY
Third Respondent
Heard:
18 April 2019
Delivered:
07 May 2019
JUDGMENT
MAHOSI.J
Introduction
[1]
This is an application in terms of section 145 of the Labour
Relations Act (LRA)
[1]
to
review and set aside the arbitration award issued by the first
respondent (the commissioner), under the auspices of the second
respondent, the Commission for Conciliation, Mediation and
Arbitration (the CCMA), dated 15 July 2017 under case number GATW
5386-17.
[2]
Prior to outlining the applicant’s case in detail and
considering the issues
that gave rise to the dispute, it is necessary
to outline the facts that form the relevant background to the dispute
between the
parties.
Material background
facts
[3]
The applicant was employed by the third respondent as Human
Resources: Generalist
on a fixed term contract from 1 August 2015 for
a period of 12 months. The termination date was 31 July 2016. It was
renewed for
two consecutive periods, The first, from 1 August 2016 to
31 December 2016 and secondly from 1 January 2017 to 31 March 2017.
[4]
It is common cause that prior to an employee joining the third
respondent, he/she
is required to undergo various verification
exercises such as credit, qualification and criminal checks which are
performed by
the third respondent’s Forensic Department. Prior
to joining the third respondent, the applicant was also subjected to
these
verification exercises.
[5]
On or about July 2016, the third respondent commissioned a service
provider, Lexis
Nexis, to conduct another verification exercises on
the applicant, which established that the applicant had a criminal
record.
On 10 October 2016, the applicant was invited to a meeting by
the Internal Audit unit during which she was requested to complete
a
Forensic Interview Information Sheet. The applicant completed the
form and indicated that she had no past, current or pending
criminal
record against her name.
[6]
Subsequently, the applicant was informed that she was under
investigation owing to
the fact that the Lexis Nexis report disclosed
that there was a criminal record against her name. The applicant
denied knowledge
of any criminal record against her name. It was then
agreed that the applicant would enquire about the status of her
criminal record.
[7]
On 11 October 2016, the applicant approached the Pretoria Criminal
Record Centre where
it was confirmed that she indeed had a criminal
record that arose from an incident in 1990 when she was arrested and
fined R150.00
for stealing sweets, chocolate and biltong. The
applicant then approached the Department of Justice to apply for the
expungement
of her criminal record.
[8]
On or about 8 February 2017, the third respondent advertised two
positions and the
applicant applied for a permanent position of Human
Resources, Business Partner. On 13 March 2017, the applicant was
interviewed
for the position she applied for and was requested to
complete a declaration form in respect of which she disclosed her
criminal
record. The applicant further deposed to an affidavit on 23
March 2017 confirming her criminal record, which was submitted to the
respondent on 27 March 2017.
[9]
A meeting was held between the applicant and the third respondent’s
representatives
on 30 March 2017 in which the applicant was informed
that her application for the permanent position was unsuccessful and
that
her fixed term contract would not be renewed. On 31 March 2017,
the third respondent issued two letters to the applicant confirming
her non-appointment and non-renewal of her fixed term contract.
[10]
Aggrieved by the third respondent’s decision not to renew her
fixed term contract and not
to appoint her, the applicant referred an
unfair dismissal dispute to the CCMA in terms of section 186(1)(b) of
the LRA. The dispute
could not be resolved at conciliation and as a
result, a certificate of non-resolution was issued. The dispute was
arbitrated on
12 July 2017. On 15 July 2017, the commissioner issued
an award in terms of which he dismissed the applicant’s claim.
It is this award that is the subject of this application.
The Arbitration Award
[11]
The issue before the commissioner appears in the parties’
pre-arbitration minute as follows:
‘
6.1
Whether the respondent dismissed the applicant?
6.1.1
The respondent submits that the contract simply expired on
termination date of 31 March 2017.
6.1.2
The applicant submits that the respondent dismissed her.
6.2
Whether the applicant had a reasonable expectation of renewal or
appointment into a permanent
position?
6.3
If the CCMA finds that there was a dismissal, then whether the
dismissal was procedurally
and substantively unfair.’
[2]
[12]
In his award, the commissioner recorded the issue in dispute as
whether the applicant had a reasonable
expectation that her
fixed-term contract would be renewed or extended as provided for
under section 186(1)(b) of the LRA.
[13]
In his analysis, the commissioner made a finding that the applicant
did not meet the requirements
of section 186(1)(b) of the LRA. The
basis for his finding was that the applicant was appointed in a
temporary position and that
this position no longer existed. Further
that the applicant was not asking for her fixed term contract to be
renewed on the same
terms and conditions, but that she be appointed
to a new position.
[14]
On the issue of dishonesty, regarding the applicant’s criminal
record, the commissioner
rejected the applicant’s submission
that during her interview, she had forgotten that she had a criminal
record. This appears
on paragraph 22 of his award where he stated as
follows:
‘
It
is highly improbable that the applicant did not remember during the
interview that she was arrested. In all likelihood this would
have
been a traumatic experience and it is difficult to see how she could
forget it. Furthermore, she kept quiet and only informed
the
respondent of the incident on 23 March some five months after the
first interview.’
[15]
The commissioner further found that the applicant failed to prove
that, despite the fact that
she did not disclose her criminal record,
she had a reasonable expectation for the renewal of her fixed term
contract or permanent
appointment. As a result, the commissioner
dismissed the applicant’s claim.
[16]
Dissatisfied with the arbitrator’s award, the applicant brought
this application.
The Grounds for Review
[17]
The applicant seeks to review the award on the basis that the
commissioner failed to consider
the evidence that the applicant’s
expectation was reasonable and therefore arrived at an award that no
reasonable decision-maker
could have arrived at.
The applicable law and
analysis
[18]
The issue before the commissioner was whether the applicant was
dismissed. Dismissal is defined
in Section 186(1)(b) of the LRA as:
‘
(1)
Dismissal means that-
(a)
an employer has terminated employment with or without notice;
(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.’
[19]
In
SA
Rugby Players’ Association v SA Rugby (Pty) Ltd and Others; SA
Rugby (Pty) Ltd v SARPU (SARPU),
[3]
the Labour Appeal Court (LAC) dealt with a similar matter and stated
as follows:
‘
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
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 91 of the Act.
…
[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
.
…
[43]
What s 186(1)(b) provides for is that there
would be a dismissal in circumstances where an employee
reasonably
expected the employer to renew a fixed term contract of employment on
the same or similar terms but the employer only
offered to renew it
on less favourable terms or did not renew it. The operative terms in
s 186(1)(b) are in my view, that the employee
should have a
reasonable expectation, and the employer fails to renew a fixed term
contract or renew it on less favourable terms.
The fixed term
contract should also be capable of renewal.
[44]
The appellants carried the onus to establish that they had a
‘reasonable expectation’
that their contracts were to be
renewed. They had to place facts which, objectively considered
established a reasonable expectation.
Because the test is objective,
the enquiry is whether would a reasonable employee in the
circumstances prevailing at the time have
expected the employer to
renew his or her fixed term contract on the same or similar terms. As
soon as the other requirements of
s186(1)(b) have been satisfied it
would then be found that the players had been dismissed, and the
respondent (SA Rugby) would
have to establish that the dismissal was
both procedurally and substantively fair.’
[20]
The applicable test is, therefore, that of “correctness”
as opposed to “reasonableness.”
The correctness of the
commissioner’s decision has to be determined from the objective
facts that were properly before him.
This was confirmed by the Labour
Appeal Court (LAC) in
Enforce
Security Group v Mwelase Fikile and Others
[4]
where it stated as follows:
‘
The
question whether there has been a dismissal goes to the jurisdiction
of the CCMA and the Labour Court to entertain the parties’
dispute. A finding that there was no dismissal means that the CCMA
and subsequently the Labour Court did not have jurisdiction
to
entertain the dispute. Such a finding as a matter of fact, has to be
a correct finding. It cannot be a finding that falls within
a band of
reasonable findings since there can only be one correct finding. To
the extent that the court a quo found that the award
stands to be
reviewed and set aside as a decision which no reasonable decision
maker could have reached it misdirected itself because
it applied a
wrong test to review the award of the commissioner.’
[21]
As aforementioned, the applicant’s contention was not only that
she had a reasonable expectation
that her fixed-term contract would
be renewed but also that she would be appointed permanently. To
support her contention, the
applicant relied on the evidence that her
fixed term contract had been renewed twice before, that the third
respondent conceded
that, but for the alleged dishonesty, she would
have been appointed and further that her criminal record was expunged
on 15 March
2017.
[22]
The applicant’s argument that she harboured a reasonable
expectation to be appointed on
a permanent position is equally not
sustainable. In
University
of Pretoria v Commission for Conciliation Mediation and Arbitration
and Others,
[5]
the
following was said;
‘
[18]
The words employed in s186 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.
These words do not
however carry the meaning which is urged by third respondent, namely
that, by being employed on the basis of
a series of fixed terms
contracts, an employee has without more a reasonable expectation of a
permanent appointment. The distinction
between the fixed term
contract and a permanent contract has a clear economic rationale. An
employer in the position of the appellant
may have discretionary
funds for a limited period. During this period, it offers a series of
fixed term contracts to a particular
employee. At some point these
funds are depleted and the employer can no longer afford a further
fixed term contract. By contrast,
the creation of a permanent post
would necessitate a more permanent source of funding.
[19]
Although a draft Bill has no significant interpretative weight, it is
instructive
to refer to the Labour Relations Amendment Bill of 2010
in which the following amendment was proposed to s186:
“
Section
186 of the principal Act is amended by-
(b) an employee
engaged under a fixed term contract of employment reasonably expected
the employer –
(i) to renew a fixed
term contract of employment on the same or similar terms but the
employer offered to renew it on less favorable
terms, or did not
renew it; or
(ii)
to offer the employee an indefinite contract of employment on the
same or similar terms but the employer offered it on less
favorable
terms, or did not offer it, where there was reasonable expectation.
”
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.
[20]
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 s186(1)(b) That would, however, not be a
case
based, as is this one, on a different form of employment, being a
permanent contract.
[21]
The words chosen by the legislature, absent an amendment to the
legislation, cannot carry the
burden of the third respondent’s
case in that it covers a restrictive set of circumstances, namely a
reasonable expectation
of a renewal of that which had previously
governed the employment relationship, namely a fixed term contract
which had previously
been enjoyed, which had now expired and, by
virtue of the factual matrix created, at best, a reasonable
expectation of a renewal.’
[23]
In view of the above authority, the applicant’s reliance on
section 186(1)(b) of the LRA to claim
her non-appointment to a
permanent position is misplaced. Section 186(1)(b) of the LRA covers
instances where the employee alleges
a reasonable expectation of
renewal of a fixed term contract that has expired. It does not cover
reasonable expectation of appointment
in a permanent position
subsequent to several renewals of a fixed term contract. Therefore,
the applicant’s claim that her
non-appointment on a permanent
basis amounted to dismissal as envisaged in section 186(1)(b) of the
LRA is meritless.
[24]
The next question
is
whether on the facts that were placed before the commissioner, the
applicant established that she held a reasonable expectation
that her
contract would be renewed. In
Independent
Municipal And Allied Trade Union and Another v City of Johannesburg
Metropolitan Municipality and Others
[6]
‘
When
assessing whether an expectation is reasonable all the surrounding
facts and circumstances should be considered including the
terms of
the contract of employment, promises made by the employer –
regardless of contractual terms which gainsay what the
employer
promised and the general conduct of the parties.’
[25]
There was
no evidence whatsoever, before the commissioner and before this
Court, that there was an expectation created by the third
respondent
that the applicant’s contract of employment would be renewed.
The applicant’s case was that, in finding
that she failed to prove her legitimate expectation, the commissioner
did not consider
the circumstances that gave rise to her expectation.
In making her case, the applicant’s relied on the fact that
while still
employed, there were no performance issues, she committed
no misconduct and the third respondent renewed her contract because
they
were happy with her. Regrettably, the circumstances relied on by
the applicant do not establish that the third respondent created
an
expectation that her contract would be renewed.
[26]
The applicant’s strong reliance on the fact that the incident
she was arrested for occurred 26
years ago is also not helpful to her
case because it is apparent from the evidence that after having being
made aware of the criminal
record, she did not immediately confirm
the existence thereof with the third respondent. Instead, the
applicant sought to apply
for the expungement of the criminal record
and gave the third respondent an impression that there had been a
mistake that she was
in a process of rectifying it. It was only after
five months or so and after being requested to depose to an affidavit
that she
confirmed that she indeed had a criminal record. So, even if
she had forgotten about her criminal record, she was afforded an
opportunity
to set the record straight, but she failed. The third
respondent gave evidence on its Code of Ethics, which requires
honesty and
integrity from all its employees.
[27]
As such, in failing to “come clean” and to admit that
there was a criminal record against
her name, the applicant was
dishonest. On the face of such dishonesty, the applicant could not
have harboured an objectively reasonable
expectation of the renewal
of her fixed term contract or permanent appointment.
[28]
The commissioner correctly found on the evidence before him that it
was difficult to comprehend how
it could be expected of the third
respondent to renew or appoint the applicant given that she did not
only fail to disclose her
criminal record, but also denied its
existence. For that reason, he found that the requirements of section
186(1)(b) of the LRA
had not been satisfied in that the applicant
failed to establish that she had a reasonable expectation of renewal.
It was on the
basis of his finding that he dismissed the applicant’s
claim.
[29]
It is my view that the commissioner’s finding was correct.
There is consequently no reason for
this Court to interfere with his
ruling. The application to review and set aside the arbitration award
in the circumstances falls
to be dismissed.
[30]
I have had regard to the issue of costs and I find that taking into
account the requirements of law
and equity, there should be no order
as to costs.
[31]
In the circumstances, I make the following order.
Order
1.
The application to review and set aside the arbitration award issued
by the first
respondent under the auspices of the second respondent
dated 15 July 2017 under case number GATW 5386-17 is dismissed.
2.
There is no order as to costs.
__________________
D. Mahosi
Judge
of the Labour Court of South Africa
Appearances
:
For
the applicant:
Advocate
B Ford
Instructed
by Nkuna
and Mabunda Inc. Attorneys
For
the third respondent: Ms
D Norton of Mkhabela
Huntly Attorneys
[1]
Act
66 of 1995 as amended.
[2]
Index
2 (Notices and CCMA Bundle) at page 173.
[3]
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC) at para 41.
[4]
(2017)
38 ILJ 1041 (LAC);
[2017] 8 BLLR 745
(LAC) at para 16.
[5]
[2012]
2 BLLR 164 (LAC).
[6]
[2014]
6 BLLR 545
(LAC) at para 34.