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[2019] ZALCJHB 103
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Pikitup Johannesburg (SOC) Limited v Muguto and Others (JR28/17) [2019] ZALCJHB 103; [2019] 10 BLLR 1146 (LC); (2019) 40 ILJ 2829 (LC) (13 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR28/17
In
the matter between:
PIKITUP
JOHANNESBURG (SOC) LIMITED Applicant
And
ABIGAIL
MUGUTO
First Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Second Respondent
KHUMALO,
BONGANI
N.O
Third
Respondent
Heard:
29 August 2018
Delivered:
13 May 2019
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The
Applicant (Pikitup) seeks to review and set aside the arbitration
award issued by the Third Respondent (Commissioner) in terms
of which
it was found that the non-renewal of the First Respondent’s (Ms
Abigail Muguto), fixed-term contract constituted
an unfair dismissal
within the meaning of section 186(1)(b) of the Labour Relations Act
(LRA).
[1]
[2]
The Commissioner had ordered the reinstatement of Muguto to the
position
of General Manager: Bulk, and further granted her other
relief including arrear remuneration in the amount of 14 months’
salary equivalent to R1 038 333,24, and ordered that she be
placed at a salary level applicable to all other comparable
General
Managers. Muguto opposed the review application.
Common
cause facts:
[3]
Muguto commenced her employment with Pikitup with effect from
24 July 2008
as General Manager: Special Projects in terms
of a five year fixed-term contract. The contract contained the normal
standard clause
that the parties agreed that Muguto had no
expectation of a renewal.
[4]
The fixed-term contract was extended to February 2014 and then
again
to June 2014. In March 2014, Muguto was transferred
to the position of General Manager: Bulk, on the same terms and
conditions
as her previous position. The contract was also extended
on no less than four occasions. The last period of extension was
between15 April 2015,
and 31 October 2015.
[5]
On 19 June 2015, Pikitup advertised the position of General
Manager: Bulk which was occupied by Muguto. The position was to be
offered on a permanent basis. Muguto was one of the applicants
who
had applied for the position and was shortlisted.
[6]
The interviews for the position took place on 7 September 2015,
and on 30 September 2015, Muguto was advised that her
application was not successful. On 21 October 2015, she
was
advised that her fixed-term contract that commenced from
7 August 2008 was to expire on 31 October 2015
and would not be extended any further.
[7]
The appointment of the successful candidate, Mr Dan Moodley, was to
take
effect from 1 November 2015. Aggrieved, Muguto had on
31 October 2015, referred a dispute to the Commission
for
Conciliation Mediation and Arbitration (CCMA), essentially alleging
that the non-renewal of her fixed term contract amounted
to a
dismissal within the meaning of the provisions of section 186 (1) (b)
of the LRA. When attempts at conciliation failed, the
dispute was
referred for arbitration and came before the Commissioner.
The
arbitration proceedings:
[8]
The Court was advised that a portion of the arbitration proceedings
was
missing from the record, and in particular, the evidence of
Muguto. Attempts at the reconstruction of the record were impossible
as a result of the unfortunate death of the Commissioner. To the
extent that the record was incomplete, Pikitup had suggested certain
remedies depending on which of its grounds of review were found to be
sustainable.
[9]
Pikitup’s Employee Relations Manager, Mr Dumisani Langa, was
its
representative and only witness at the proceedings. Muguto was
legally represented and had led her own evidence and that of
her witness, Ms Ruth Manyama, an IMATU shop Steward.
[10]
At the commencement of the arbitration proceedings, the duty to begin
became an issue in
the light Langa being a representative and also
witness in the proceedings. In the founding affidavit in support of
the review,
Langa averred despite the onus being on Muguto in the
light of the dismissal being placed in dispute, the Commissioner
informed
him that since he was privy to all the evidence, he should
assume the duty to begin. The Commissioner had raised concerns about
the credibility of his evidence and the weight to be attached to it
should Muguto lead her evidence first.
[11]
His evidence before the Commissioner pertained to the
decision/resolution of the Board
of Pikitup in 2012/2013 to convert
certain fixed-term contract positions into permanent positions, and
to advertise some of those
positions. The affected positions were
those at level 4 and downwards. According to Langa, it was envisaged
that the then fixed-term
contracts would be allowed to run their
course whilst positions were advertised and filled. He disputed that
there was any decision
to automatically convert fixed-term contract
employees into permanent employees.
[12]
He also testified in regards to the circumstances of Muguto’s
initial appointment,
stating that she was appointed as General
Manager: Special Projects to deal with the 2010 FIFA World Cup and
the Confederations
Cup. When that role came to an end, Muguto was
then moved to the Bulk section as her contract was for five years.
After Muguto
had applied for the position as advertised, she was
shortlisted and interviewed, and that process was conducted fairly.
[13]
Manyama’s evidence pertained to the interviews, with her
allegations being that a
Union representative was not allowed to
participate in the interviews; that Moodley’s appointment was
not fair as he had
submitted his CV on the date of the interview
contrary to the rules, and had replaced Muguto before the interviews
took place.
Manyama’s contention was that Moodley’s
appointment was unfair as he was a relative of the Managing
Director,
Amanda Nair.
[14]
Muguto’s case as summarised by the Commissioner was that her
initial position of
General Manager: Special Projects still existed
and was occupied by another employee. She testified in regard to
various extensions
in relations to her initial five-year fixed term
contract, and how employees in similar positions like her were
informed that the
extensions were merely to formalise their
appointments into permanent posts in line with the City of
Johannesburg’s directives
to turn all fixed-term contracts into
permanent appointments. In this regard, two other employees at her
level were made permanent
employees.
[15]
Muguto’s evidence also pertained to how the interview process
was unfairly conducted,
including that she was given a case study in
preparation for the interview on the date of the interview instead of
a day before;
that her union, IMATU was not invited to her interview
as management had threatened to dismiss any union member who attended
the
interviews; that the interview panel was not properly
constituted; and further being advised informally by the Managing
Director
that her application for the post was unsuccessful.
[16]
Muguto further testified in regard to being advised of the
availability of the position
of General Manager: Operations
which she was prepared to occupy, and further having had a discussion
with the COO about other
alternative positions that were advertised.
[17]
She also complained about the recruitment process in relation to
another position she had
previously applied for. She testified that
she was initially shortlisted but subsequently removed from the
shortlist without being
interviewed. She contended that the position
in question was given to another employee who did not meet the
minimum requirements
of the post.
The
Commissioner’s findings:
[18]
The commissioner made the following findings;
18.1
Pikitup only called upon Langa to testify, when he had no first-hand
knowledge about the facts
of the case, and at best, his evidence
amounted to hearsay, and thus less evidentiary weight should be
placed on that evidence.
18.2
To the extent that certain key individuals who had made decisions
pertaining to the full time
appointment of fixed-term contract
employees were not called upon to testify, an adverse inference
should be drawn against Pikitup.
18.3
Certain material evidence was not disputed, including that there were
four extensions (‘renewals’)
of six months nor was there
a justification for shorter terms; that Pikitup had promised the
employees that all their fixed-term
contracts would be converted into
permanent posts; that a union representative was not allowed at the
interviews; that Pikitup’s
Amanda Nair’s conduct leading
to the termination of Muguto’s contract was unfair; that
Muguto’s salary increase
was not effected as compared to other
employees at her level; that there were other vacant positions that
were discussed with Muguto
as alternatives but nothing came of it;
that Muguto was shortlisted in another process in respect of another
position initially,
and that Nair had removed her name from the
shortlist and appointed another individual with less qualifications;
that the interview
panel in respect of the position of General
Manager: Bulk was improperly constituted, and that Muguto’s
interview process
was unfair;
18.4
The Commissioner questioned the reason why Muguto was not appointed
amongst all internal candidates
who went through interviews even
though she was highly qualified, or why she was paid less than
comparable General Managers.
18.5
In the Commissioner’s view, Muguto had discharged the onus of
proving that she had a legitimate
expectation that her contract would
be renewed, as Pikitup did not follow its own renewal or interview
procedures, and further
that Pikitup had predetermined candidates
when it manipulated the procedures to ensure that its own candidates
succeeded.
18.6
The Commissioner further concluded that that the custom in Pikitup
was to award positions to
internal candidates or black females; that
posts were available where Muguto could be placed, and that there was
inconsistent conduct
insofar as treating the recruitment process in
respect of Muguto, and further insofar as confirming the termination
of her fixed-term
contract, as she was only given five days’
notice.
18.7
The Commissioner further criticised the evidence of Langa, concluding
that he had conducted himself
as a witness in an arrogant,
high-handed, unrepentant and domineering manner, whilst Muguto’s
witnesses were consistent,
honest and credible in all material
respects.
The
grounds of review:
[19]
Pikitup cited five main grounds for seeking a review of the award. In
this regard, it was
submitted that;
19.1
The Commissioner incorrectly found that Muguto had a reasonable
expectation of a renewal of her
fixed-term contract in terms of the
provisions of section 186(1)(b) of the LRA, and thus failed to apply
a proper and correct test;
19.2
The Commissioner misconceived the nature of the enquiry before him by
conflating the question
of whether there was a fair interview
process, with the question of whether Muguto had a reasonable
expectation of the renewal
of her contract;
19.3
The Commissioner based his award on a host of factual findings on
issues which were never put
to Pikitup’s witnesses in cross
examination, and thus deprived it of a fair hearing;
19.4
The Commissioner committed a gross procedural irregularity in
ordering Pikitup to commence with
the leading of evidence in the
arbitration proceedings;
19.5
In ordering Pikitup to increase the salary level of Muguto, the
Commissioner exceeded his powers
in that no dispute in this regard
was before him.
The
review test:
[20]
An issue that arises in this case is that of the applicable review
test. This was so in
that it was submitted on behalf of Muguto that
since the grounds of review relied upon by Pikitup are meant to be in
terms of the
provisions of section 145 of the LRA, no basis for
review was laid in terms of those provisions, as reliance was placed
squarely
on the test of correctness.
[21]
The debates surrounding the applicable review test in such instances
is superfluous in
the light of what was long stated in
Fidelity
Cash Management Services v Commission for Conciliation, Mediation and
Arbitration and Others,
to the effect that;
“
Nothing
said in Sidumo means that the grounds of review in sec 145 of the Act
are obliterated. The Constitutional Court said that
they are suffused
by reasonableness. 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 sec 145 of
the Act. If the CCMA had no
jurisdiction in a matter, the question of the reasonableness of its
decision would not arise. Also
if the CCMA made a decision that
exceeds its powers in the sense that it is
ultra
vires
its
powers, the reasonableness or otherwise of its decision cannot
arise.”
[2]
[22]
Any further
doubts about the applicable test was laid to rest in
Jonsson
Uniform Solutions (Pty) Ltd v Brown and others
[3]
,
where
the Labour Appeal Court held as follows;
“
The
generally accepted view is that we have a bifurcated review
standard
viz
reasonableness and correctness. The
test for the reasonableness of a decision was stated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
as
follows: “Is the decision reached by the commissioner one that
a reasonable decision-maker could not reach?”
In
assessing whether the CCMA or the Bargaining Council had jurisdiction
to adjudicate a dispute, the correctness test should be
applied. The
court of review will analyse the objective facts to determine whether
the CCMA or Bargaining Council had the necessary
jurisdiction to
entertain the dispute. See
SARPA v SA Rugby (Pty) Ltd and
Others; SA Rugby (Pty) Ltd v SARPU
.
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 the 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.
It
is therefore important to determine whether the dispute, between the
parties, is a jurisdictional one or not. The dispute to
be resolved
determines the test to be applied. In this matter, the dispute
between the parties was whether there was in fact a
dismissal. If
there was no dismissal the Bargaining Council would not have
jurisdiction. If there was a dismissal the Bargaining
Council would
have jurisdiction. The existence or otherwise of a dismissal is
therefore a jurisdictional issue. The correctness
standard and not
the reasonableness standard should therefore be applied. The court
a
quo
, as both parties agreed, applied the wrong
standard.” (Citations omitted)
[23]
In the light of the above principles, it follows that an attack on
Pikitup’s reliance
on the correctness test in regards to the
issue of jurisdiction and whether Muguto was dismissed or not has no
merit. The issue
turned on whether on the facts placed before him,
the Commissioner’s decision that Muguto had established a
dismissal for
the purposes of a claim under section 186(1)(b) of the
LRA was correct or not. If it was not correct, the consequences
thereof
are that the CCMA lacked jurisdiction to determine the
dispute.
The
question of onus:
[24]
The dispute
referred to the CCMA pertained to an alleged unfair dismissal on
account of non-renewal of Muguto’s fixed term
contract as
contemplated in section 186(1)(b) of the LRA
[4]
.
[25]
Given the approach of the Commissioner in regards to the issue
of onus, the contention
made on behalf of Pikitup that he
(Commissioner) committed a gross procedural irregularity in ordering
Langa to commence with the
leading of evidence in the proceedings has
merit.
[26]
The Commissioner in his award had appreciated that the duty to begin
rested on Muguto.
However for some strange reason, the Commissioner
and Muguto’s legal representative at those proceedings raised
concerns
about the fact that Langa, who represented Pikitup, was also
its sole witness. On the basis of those concerns, the Commissioner
had raised issues of credibility of Langa’s evidence by virtue
of him wearing two caps in the proceedings, on the basis that
he was
privy to all the evidence. The Commissioner had also raised concerns
about the weight that might be attached to Langa’s
evidence if
he did not commence with the evidence first.
[27]
In
arbitration proceedings before the CCMA, it is not uncommon for
Commissioners to be confronted with less than ideal scenario
where a
representative of the employer also acts as its witness. Equally so,
it is not uncommon for employees to represent themselves
in those
proceedings and to lead their own evidence. In my view however,
irrespective of the circumstances of the case, the question
of the
duty to begin and discharging the onus in dismissal disputes is a
statutory requirement imposed by the provisions of section
192 of the
LRA
[5]
. Those provisions cannot
be circumvented for the sake of convenience or expedience.
[28]
It is not
clear as to which provision in the Law of Evidence Act
[6]
the Commissioner was referring to when raising the question of
credibility and the weight to be attached to Langa’s evidence
if he did not commence with the leading of evidence despite his clear
appreciation of the duty to begin. Be that as it may, in
a less than
ideal scenario already referred to above, if in arbitration
proceedings the issue of a dismissal is common cause, an
employer
representative who is also its witness should for obvious reasons
lead his/her evidence first before all the other witnesses
are
called. That evidence like any other should be subject to the
normal rules of evidence. Equally so, where the fact of
a dismissal
is in dispute, the employee alleging the dismissal, whether
self-represented or not, must lead evidence first to demonstrate
that
indeed a dismissal took place.
[29]
The
question of the credibility of the evidence led by witnesses in
whatever order is not a consideration in determining where the
onus
lies. It is but one of the considerations in the overall assessment
and evaluation of evidence in line with the principles
set out in
Stellenbosch
Farmers’ Winery Group Ltd v Martell et cie
[7]
.
[30]
There is a
dispute as to whether the Commissioner had compelled Langa to testify
first, or whether as the Commissioner had stated
in the award, that
Langa had offered to begin. The record of proceedings however
indicate that the parties reached agreement on
who should begin
[8]
.
In my view however, that dispute is inconsequential, as in line with
the provisions of section 192 of the LRA, it was for the
Commissioner
to simply remind the parties what their statutory obligations were in
regard to the issue of onus, and to give direction
in regards to the
duty to begin irrespective of the constraints (if any) Langa was
faced with.
[31]
To the extent that the Commissioner first heard the evidence of Langa
when the duty to
begin and to discharge the onus in regards to the
dismissal was on Muguto, there can be no doubt that the Commissioner
clearly
misconceived the question of onus, and committed a gross
procedural irregularity, which on its own rendered the award
reviewable.
That irregularity prevented Pikitup from having its case
fairly heard, or prevented a fair trial of the issues.
Was
a dismissal established?
[32]
The
provisions of section 186(1)(b) of the LRA were interpreted in
University
of Pretoria v CCMA and Others
[9]
as
follows;
“
[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 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”
And,
“
[21]
The words chosen by the legislature, absent an amendment
to the
legislation, cannot carry the burden of 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.”
[33]
As already
indicated, the onus of proof in such disputes is on the employee to
prove the dismissal by placing facts before the Commissioner
which
objectively considered, would lead to a conclusion that the employee
held a reasonable expectation that her fixed term
contract
would be renewed
[10]
. In an
instance such as this, where obviously the dismissal is placed in
dispute, the enquiry invariably transcends into that of
jurisdiction,
as without the fact of a dismissal having been proven, the CCMA would
lack jurisdiction to determine the dispute
[11]
.
Where however the fact of a dismissal was established, it would then
be for the employer to establish that the dismissal was procedurally
and substantively fair
[12]
.
[34]
Bearing in mind the criticism levelled against the Commissioner’s
approach in regards
to the question of onus, the next enquiry is
whether there were facts that were placed before the Commissioner,
which when objectively
considered, would lead to a conclusion that
indeed Muguto had a reasonable expectation that her fixed-term
contract of employment
would be renewed on the same or similar terms.
[35]
It is correct as stated on behalf of Muguto that there is no closed
list of factors that
are relevant to the enquiry whether an employee
had a reasonable expectation of a renewal. Be that as it may, the
following factors
have been held to be of significant value in
the objective enquiry,
viz
,
(a)
The terms
and conditions of the contract
[13]
;
(b)
The past practice of renewals or extensions;
(c)
The nature
of the work and the reason for fixed term contract arrangements
[14]
;
(d)
Any assurances or undertakings by the employer that the contract
would
be renewed/extended;
(e)
The failure to give reasonable notice of non-renewal of the contract.
[36]
In this case, and as already stated, the fixed term contract entered
into between Pikitup
and Muguto was renewed on no less than four
occasions from its inception on 24 July 2008 until
15 April 2015,
when Muguto was informed of the final
extension.
[37]
It has been stated that the mere fact that a fixed-term contract was
renewed repeatedly
does not in itself give rise to the existence of a
reasonable expectation of renewal. The renewal or extension must be
viewed within
the context of its purpose and objectives and the
factors already mentioned in this judgment.
[38]
In most
instances, such contracts contain the standard clause expressly
stating that the employee had no right to renewal or expectation
of a
renewal (The so-called disavowal clause). It is accepted on the
authority of
Mediterranean
Woollen Mills (Pty) Ltd v SACTWU
[15]
that
despite these clauses, a reasonable expectation could still arise
during employment if assurances, existing practices and the
conduct
of an employer led an employee to believe that there was hope for a
renewal, whether on a temporary or an indefinite basis.
Even then,
these factors are still subject to an objective assessment.
[39]
In the end however, when a renewal or extension is effected, it
cannot be said that on
its own, it varies the original terms and
conditions of the contract for the purposes of creating or proving a
legitimate expectation,
unless this is expressly stated when the
contract is renewed or extended.
[40]
Significant with the facts of this case is that at some point of the
duration of the fixed-term
contract, Muguto was moved to another
position as General Manager: Bulk. Even then, the letter of transfer
dated 27 March 2014
expressly stated that other than the
change in roles and reporting structures, her remuneration and other
terms and conditions
remained the same.
[41]
Central to Muguto’s case appears to be the position of General
Manager Bulk. Nothing
much is said about her original position of
General Manager: Operations, even though her contention was that the
position was still
available
albeit
someone else occupied it.
Even then, any reasonable expectation that she may have had could
only have been with respect to the
last post she occupied, which was
that of General Manager: Bulk, and which on the common cause facts,
she had agreed would be essentially
on the same terms and conditions,
including disavowal of guarantees of further extensions.
[42]
Taking into account the factors for consideration in determining
whether a case of a dismissal
or legitimate expectation was made, it
is my view that notwithstanding the constraints with the missing
portion of the record,
and purely based on the common cause facts and
the applicable legal principles, the Commissioner’s findings
that Muguto was
dismissed are clearly not correct, and the award
ultimately ought to be reviewed and set aside. My conclusions in this
regard are
based on the following considerations;
42.1
There is a dispute as to whether fixed-term contract employees were
promised that their contracts
would be converted into permanent
contracts or not.
42.2
Muguto sought to rely on the ‘
Agreement on the Conversion of
Fixed term Employees in terms of the Institutional Redesign’
entered into between the City of Johannesburg and the recognised
Trade Unions, for the proposition that there was a promise or
assurance that her fixed-term contract would be converted. Her
contention was that based on that agreement, all fixed-term employees
on reporting level 3 structures and below, were to be converted into
permanent employees. Whilst relying on that agreement, Muguto
further
pointed out that a provision was made that where business imperatives
dictated, the company would advertise positions to
give it an
opportunity to appoint persons with suitable skills.
42.3
According to Langa, the agreement Muguto sought to rely on was not
binding on Pikitup as a separate
entity. What Pikitup had however
done was that its Board took a resolution to convert fixed-term
contract posts into permanent
post. Langa’s emphasis was on the
post rather than individuals occupying the posts, and in line with
that resolution, certain
posts were to be advertised whilst letting
the existing fixed-term contracts run their course.
42.4
In my view, even if there was merit in the contention that the City
of Johannesburg agreement
was binding, and in line with the provision
that certain posts were to be advertised, I fail to appreciate the
reason Muguto would
nonetheless still feel entitled to the position
on a permanent basis, particularly in the light of her appreciation
that a prerogative
was to be retained in regards to the advertisement
of the posts, and the common cause facts that indeed her position was
advertised.
42.5
Furthermore, to the extent that Muguto sought to rely on the
agreement, that was an issue raising
a different dispute altogether
under the provisions of section 24 of the LRA as was correctly
pointed out on behalf of Pikitup.
As if that was not enough, a
dispute surrounding a conversion from fixed-term contract to
permanent contract cannot by all accounts
be consistent with the
requirements or what needs to be proven under the provisions of
section 186(1)(b) of the LRA.
42.6
To the extent that Langa’s evidence in regards to the agreement
and the Boards’ resolution
appeared to be more plausible and
probable, once Pikitup had taken a resolution to advertise some of
those positions which were
initially offered on fixed-term, that was
a matter within its prerogative. If an employer decided to advertise
positions that were
previously occupied by fixed-term contract
employees, that decision is in accordance with the prerogative it
enjoys, and a consideration
of its own operational requirements. That
decision as I understood the evidence, was of Pikitup’s Board,
which remained unchallenged.
42.7
It is not clear from the evidence as to at what stage Muguto had
acquired the expectation that
the contract would be renewed. It was
however common cause that she was advised on 15 April 2015
when the contract was
extended that subsequent renewals or extensions
were not guaranteed. The post was then advertised in June 2015.
At no stage
between the last notice and 31 October 2015
when the contract was terminated did Muguto take any steps or alluded
to
her expectations.
42.8
It is my view that at the time that Muguto’s post was
advertised, Pikitup’s message
was clear and unequivocal that
her contract would not be renewed or extended. To the extent that the
position was advertised, it
is my view that if Muguto harboured any
legitimate expectation that her fixed term contract would be renewed
or that she would
be appointed permanently as she alleged, it was at
that point that she needed to have taken steps in regard to the
recruitment
process or raise issues surrounding her legitimate
expectation. She did not do so, and it can be accepted that she had
resigned
herself to the reality that the post was indeed to be
advertised, and like any other candidate, she had to prove her worth
in the
interview processes.
42.9
To the extent that she had applied for the position, was shortlisted,
interviewed and was unsuccessful,
there can be no talk of a
legitimate expectation, as any outcome related to that recruitment
process, led to a new dispute. Her
conduct in relation to her active
participation in the recruitment process is irreconcilable with her
contentions that she had
a legitimate expectation of a renewal of her
fixed-term contract.
42.10 It
follows that any suggestion by the Commissioner that Muguto should
have been considered for other alternative
positions was not in sync
with what her case was, which was that she had a legitimate
expectation to have her fixed-term contract
of employment as General
Manager: Bulk renewed. A legitimate/reasonable expectation to be
placed in an alternative position or
into a permanent position is
inconsistent with what was envisaged in the provisions of section
186(1)(b) of the LRA.
42.11 On
30 September 2015, Muguto was informed that her application
for the post was unsuccessful. She was
reminded of the termination of
her contract on 12 October 2015 and again, she took no
steps, either by raising legitimate
expectation or a dispute
surrounding her non-appointment. She waited until the last day of the
termination of her contract to lodge
a dispute.
42.12 When
she was advised of the termination of the fixed-term contract on
12 October 2015, it is equally
implausible that any
legitimate expectation could have accrued at that time. This is so in
that the recruitment process was finalised
and a new incumbent to the
position was appointed. Any alleged expectation at that stage of a
renewal was clearly not reasonable
nor rational.
42.13 It is
within the context of determining whether a legitimate expectation
was established (
i.e
., a dismissal) that the Commissioner had
as it was correctly pointed out on behalf of Pikitup, conflated that
issue, with that
of the failure to appoint following the interviews.
Any evidence in relation to the interviews or recruitment process
pertaining
to the position of General Manager: Bulk, or any other
positions Muguto had previously applied for and was unsuccessful for
whatever
reason, was irrelevant for the purposes of establishing
whether she had a reasonable/legitimate expectation of a renewal of
her
fixed-term contract as General Manager: Bulk.
42.14 It
further follows that any findings made by the Commissioner in
relation to the recruitment process pertaining
to that position, or
any issues raised pertaining to salary disparities, carried little
weight in regard to the issues for determination.
The issues of the
failure to appoint into a position that was advertised, and of salary
disparities were not before the Commissioner.
To be more specific,
those issues had not been referred for conciliation for the purposes
of jurisdiction. Without the necessary
jurisdiction, any relief
granted in regard to those issues, especially pertaining to salary
was a nullity.
[43]
It follows from the above observations that the only conclusion to be
reached is that it
cannot be said in the light of the prevailing
facts and circumstances, that Muguto had placed facts before the
Commissioner, which
when objectively assessed, could have led to a
conclusion that she had a legitimate expectation that her fixed-term
contract would
be renewed on the same or similar terms.
[44]
It follows from the above that the decision by the Commissioner that
Muguto was dismissed
within the meaning of section 186(1)(b) of the
LRA was an incorrect one, and consequently, the CCMA had no
jurisdiction to determine
the dispute. As a result, the matter ought
to have been dismissed.
[45]
I have had regard to the fact of the missing portions of the record
and the order to be
made by this Court. In the light of the
conclusions reached in this case, I agree with the submissions made
by Mr Orr on behalf
of Pikitup that once there was no basis to
conclude that Muguto had established a legitimate expectation, no
purpose would be served
by remitting the matter back to the CCMA, and
the Court is in a position to substitute the Commissioner’s
award.
[46]
I have further had regard to the issue of costs in line with the
requirements of law and
fairness. In that regard, I am of the view
that a costs order is not warranted in this case.
[47]
In the premises, the following order is made;
Order:
1. The arbitration
award issued by the Third Respondent under case number GAJB23564-15
dated 30 December 2016, is
reviewed, set aside and
substituted with an order that;
(a)
Ms Abigail Muguto has not established a dismissal under the
provisions
of section 186(1)(b) of the Labour Relations Act.
(b)
Ms Abigail Muguto’s referral is dismissed on account of lack of
jurisdiction.
2. There is no
order as to costs.
____________________
Edwin Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: C
Orr, instructed by
Bowman Gilfillan
For
the First Respondent: Z Makgalemele, instructed by
Crispen Machingura Attorneys
[1]
Act
66 of 1995 (as amended)
[2]
[2007] ZALAC 12
;
[2008] 3 BLLR 197
(LAC); (2008) 29 ILJ 964 (LAC) at
para 101; See also
De
Milander v MEC for the Department Finance: Eastern Cape and Others
[2012] ZALAC 37
; (2013) 34 ILJ 1427 (LAC) (30 November 2012), where
it was held that;
“
[24]
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 (
SA Rugby Players’ Association (SARPA) and Others
v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v SARPU and
Another
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC) at para
[39]
). The question whether, on the facts of the case, a dismissal
had taken place within the ambit of section 186 (1) (b) involves
the
determination of the jurisdictional facts. A jurisdictional ruling
is subject to review by the Labour Court on objectively
justifiable
grounds and not on the reasonableness test approach as enunciated
in
Sidumo
. The test is whether, objectively speaking,
the facts which would give the GPSSBC jurisdiction to entertain the
dispute existed.”
[3]
(DA10/2012) [2014] ZALCJHB 32 (13 February 2014)
[2014] JOL 32513
at
paras 33 – 36; See also
Enforce
Security Group v Fikile and Others
[2017] ZALAC 9
; (2017) 38 ILJ 1041 (LAC);
[2017] 8 BLLR 745
(LAC),
where it was held that;
“
[16]
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
f
ound 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.”
[4]
Section 186(1)(b) provides that:
‘
(1)
Dismissal means that-
(a)
...
(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.
[5]
192.
Onus in dismissal disputes
(1)
In any proceedings concerning any
dismissal
,
the
employee
must establish the existence of the
dismissal
.
(2)
If the existence of the dismissal is
established, the employer must prove that the
dismissal
is fair.
[6]
Law of Evidence Amendment Act; 1988
Act No. 45, 1988
[7]
2003 (1) SA 11
(SCA) para 5. See also
Sasol
Mining (Pty) Ltd v Ngqeleni NO
(2011) 32 ILJ 723 (LC)
[8]
Transcribed
Record at page 11, Lines 1 - 4
[9]
Unreported Case No JA38/2010, 4-11-11) (Davis JA)
[10]
See
Joseph
v University of Limpopo & others
[2011]
12 BLLR 1166
(LAC), where it was held that;
“
[35]
The onus is on an employee to prove the existence of a
reasonable or legitimate expectation. He or she does so by
placing
evidence before an arbitrator that there are circumstances which
justifies such an expectation. Such circumstances could
be for
instance, the previous regular renewals of his or her contract of
employment, provisions of the contract, the nature of
the business
and so forth. The aforesaid is not a closed list. It all depends on
the given circumstances and is a question of
fact.”
[11]
See
Mnguti
v Commission for Conciliation, Mediation and Arbitration and Others
(2015) 36 ILJ 3111 (LC) at para 14, where it was held that;
“
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.”
[12]
See
South
African Rugby Players Association (SAPRA) and Others v SA Rugby
(Pty) Limited and Others; SA Rugby Pty Limited v South African
Rugby
Players Union and Another
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC); (2008) 29 ILJ 2218 (LAC),
where it was held that;
“
[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. In Benicon Earthworks & Mining Services (EDMS) BPK
v Jacobs No & Others (1994) 15 ILJ 801 (LAC)
at 804 C-D,
the old Labour Appeal Court considered the position in relation to
the Industrial Court established in terms of the
predecessor to the
current Act. The Court held that the validity of the proceedings
before the Industrial Court is not dependent
upon any finding which
the Industrial Court may make with regard to jurisdictional facts
but upon their objective existence.
The Court further held that any
conclusion to which the industrial court arrived at on the issue,
has no legal significance.
This means that, in the context of this
case, the CCMA may not grant itself jurisdiction which it does not
have. Nor may it deprive
itself of jurisdiction by making a wrong
finding that it lacks jurisdiction which it actually has
jurisdiction. There is, however,
nothing wrong with the CCMA
enquiring whether it has jurisdiction in a particular matter
provided it is understood that it does
so for purposes of
convenience and not because its decision on such an issue is binding
in law on the parties. In Benicon’s
case the Court said:
“
In
practice, however, an Industrial Court would be short-sighted if it
made no such enquiry before embarking upon its task. Just
as it
would be foolhardy to embark upon proceedings which are bound to be
fruitless, so too would it be fainthearted to abort
the proceedings
because of a jurisdictional challenge which is clearly without
merit.”
(at 804 c-d)”
And,
“
[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.”
[13]
IMATU
and Others v City of Johannesburg Metropolitan Municipality and
Others
[2014]
6 BLLR 545
LAC at para 34, where it was held that;
“
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”
See
also
Dierks v University of South Africa
(1999) 20 ILJ 1227 (LC) at page 1246 paragraph
[133],
[14]
See
SA Clothing and Textile Workers Union v MediterraneanWoolen Mill
1998 (2) SA 1099 (SCA
)
in
“
It is apposite to consider the reasons why parties enter into a
fenced-term contract. Usually a fixed term contract is entered into
because the task to be performed is a limited or specific one, or the
employer can offer the job for a limited or specified period only.”
[15]
Supra