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[2019] ZALCJHB 339
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Mabizela v Commission for Conciliation Mediation and Arbitration and Others (JR2602/17) [2019] ZALCJHB 339 (29 November 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No:
JR2602/17
In
the matter between:
THATO
HERMAN MABIZELA
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
F
MOOI
N.O
Second
Respondent
SOUTH
AFRICAN BROADCASTING CORPORATION
SOC
LTD
Third Respondent
Heard:
19 July 2019
Delivered:
29 November 2019
Summary:
Jurisdictional review – legitimate expectation of renewal -
Commissioner correct – Review
set
aside
JUDGMENT
MOGANE,
AJ
Introduction
[1]
This is a review application
brought in terms of section 145 of the Labour Relations Act
[1]
(LRA) where the Applicant seeks an order reviewing and setting aside
the arbitration award issued by the Second Respondent (Commissioner)
under case number: GAJB 9678/17.
[2]
In the award, the Commissioner found that the Applicant has not
discharged the onus
in terms of section 192 of the LRA in proving the
existence of his dismissal. The Applicant was found to not have been
dismissed
and the Commissioner dismissed his case.
Background
Facts
[3]
The Applicant was engaged as a
camera operator and freelancer from April 2004 for a period
of 12
months which contract was renewed annually from April 2004 to
February 2014.
[4]
On or about 28 February 2014,
the Applicant signed a fixed three (3) year contract with
the Third
Respondent commencing on 1 March 2014 and terminating on 28 February
2017.
[5]
The Applicant expected his
employment contract to be renewed as was the case with the previous
freelance contracts, which were renewed annually for the past 10
years prior to this fixed term contract of employment for the
duration of 3 years which he signed on 28 February 2014.
[6]
The Applicant also expected that
his contract would be renewed because the then Chief Operating
Officer (COO), Hlaudi Motsoeneng (Mr Motsoeneng) had converted other
freelancers to permanent employees and a promise was made
to convert
all other freelancers including the Applicant.
[7]
The Applicant contends that the
fact that he was not served with a one month notice prior
to the
termination of his fixed term contract and further that two weeks
prior to the termination of his contract, the Applicant
was sent by
the Third Respondent to the University of Pretoria to do a short
course in vision control and vision wiping supports
his version.
[9]
The Applicant regards the
termination of his contract as a dismissal and therefore referred
a
dispute with the First Respondent.
The
Arbitration Proceedings
[10]
The Applicant testified himself at the arbitration
and the Respondent was represented by Mr Mcineza. The
Applicant’s
evidence before the Second Respondent was that the freelance contract
that he signed did not have benefits like
medical aid, pension and
sick leave and as a freelance contractor, he could also do other work
outside of the SABC.
[11]
He testified that a verbal commitment was made by Mr Motsoeneng that
his fixed term employment
would be converted into a permanent
position. Further also two of his colleagues, being Mr Kalake and Mr
Ngwenya had their contracts
renewed but does not know the reasons for
the renewal of their contracts. The Respondent did not testify but
rather cross examined
the Applicant and argued the matter before the
Second Respondent.
[16]
The Second Respondent arbitrated the dispute and
issued an award finding that the Applicant was not dismissed
as his
fixed term contract came to an end.
The
Grounds for Review
[17]
The Applicants grounds for review were that: -
17.1 The
Award is one that a reasonable decision maker could not reach as the
Second Respondent did not take all the
relevant factors into
consideration when finding that the Applicant was not dismissed
whilst a reasonable expectation was created
that the Applicant’s
contract will be renewed and or that the Applicant would be made
permanent like other freelance contractors.
17.2
The Second Respondent committed
misconduct in relation to the duties of an arbitrator in making his
decision, namely that the Applicant
failed to prove that he was
dismissed and therefore he was not entitled to the relief sought
whilst he (the Applicant) discharged
such a burden on a balance of
probabilities.
17.3
The Second Respondent committed a gross
irregularity in the conduct of the proceedings and misconstrued both
the law and the test
relating to a reasonable expectation created in
section 192 of the LRA.
17.4
The Second Respondent exceeded his
powers as a commissioner in finding that the applicant was not
dismissed and that a limited duration
of a fixed term contract came
to an end without any reasonable
expectations
being created that the same will be renewed for a further period of 3
years.
17.5
The Second Respondent failed to take all
the relevant issues into consideration,
inter
alia,
the renewal of other freelance
employees’ contracts and the cautionary rules of evidence. The
Second Respondent failed to
properly make an analysis of the evidence
before him, both oral and documentary as well as the arguments
presented. His award appears
to be one sided and biased against the
Applicant.
17.6
The Second Respondent rendered an award which another reasonable
commissioner would not have issued and same
stands to be reviewed and
set aside, alternatively remitted
to the
First Respondent to be arbitrated
de
novo
by a commissioner other than
the Second Respondent.
The
appropriate test on review
[18]
The issue that was before the Second Respondent
was whether there has been a dismissal or not. This is an
issue that
goes to the jurisdiction of the CCMA. The test to be applied in this
matter was correctly stipulated in
Pik-It-Up
Johannesburg (PTY) v IMATU obo Cook
[2]
where the Court said:
‘
16.
…The applicant is correct in its submission that the test for
determining jurisdiction
in review matters is not that of a
reasonable decision maker as is the case in the general review cases
but that which was enunciated
in the case of SA Rugby Players’
Association (SARPA) and others v SA Rugby (Pty) Ltd and Others; SA
Rugby (Pty Ltd and Another
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC). In that case, the
Labour Appeal Court per Tlaletsi JA, held that where jurisdiction is
in issue, the test to apply is the
following:
“
39.
The issue that was before the arbitrator 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, 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 (Pty) Ltd v Jacobs
NO & Others
(1994) 15 ILJ 801 (LAC) at 804C-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 regards to jurisdictional facts but upon their
objective
existence. The court held further that any conclusion to
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 the 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 faint-hearted to abort
the proceedings because of
a jurisdictional challenge which is clearly without merit.” At
804C-D). “In my view, the
same approach is applicable to the
CCMA”.’
[19]
The inquiry that needs to be conducted in the present matter is
whether the facts as presented
by the employee objectively establish
that a dismissal had occurred when the applicant did not extend her
employment contract.
It was further held in
Limpopo
Legislature v Gumani Robert Matodzi
[3]
that:
“
The correct
approach in reviewing the arbitrators ruling on the jurisdictional
issue is whether or not the arbitrator was right
or wrong in deciding
if a dismissal took place not whether the arbitrator’s finding
was one that no reasonable arbitrator
could reach”
Evaluation
[20]
One has to firstly determine whether there was a
dismissal as defined in terms of section 186(1)(b). In
terms of this
section dismissal means that:
(a)
…………………………………………………………..
(b) an employee employed
in terms of 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 favourable
terms or did not renew
it ̧
or
(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]
The onus to prove that there has been a dismissal
rests on the Applicant. Section 192(1) of the LRA states
that:
‘
In any proceedings
concerning any dismissal, the employee must establish the existence
of a dismissal. The next inquiry then for
the Second Respondent to
determine was whether on the facts that were placed before him and
considered objectively if it has been
established that the Applicant
held a reasonable expectation that his contract will be renewed
[4]
.’
[22]
As a starting point, one should determine at
exactly which point did the expectation arise and what gave
rise to
this expectation. According to the Applicant, his freelance contract
was, for a period of 10 years, renewed annually and
therefore he
expected his three year fixed term contract to be renewed. He was
regarded as a full-time employee for over 10 years
before signing the
fixed term contract on 28 February 2014.
[23]
I do not agree with this assertion by the
Applicant. The Applicant was from April 2004 to February 2014
an
independent contractor. In terms of section 213 of the LRA, an
employee is defined as:
(a)
any person excluding an independent contractor work for another
person or for the state
and who receives or is entitled to receive
any remuneration; and
(b)
any other person who in any manner assists in carrying on or
conducting the business or
an employer.
[24]
I have had sight of the contract that the
Applicant signed on 20 March 2009 running from the period of 1
April
2009 to 31 March 2010
[5]
.
It is apparent in that contract that the Applicant is referred to as
an independent contractor. Clause 1.3 of the said contract
states:
‘
The SABC hereby
engages the News Independent Contractor subject to the terms and
conditions set out herein under.’
and then at clause 4.1:
The News Independent
Contractor’s engagement in terms thereof shall not constitute
4.1.1 the creation of an expectation, prospects,
rights or claim/s
for the renewal of this contract and at 4.1.2 or to be deemed to
constitute an appointment as an employee of
the SABC in terms of the
Labour Relations Act of 1999, The Basic Conditions of Employment Act,
The Employment Equity Act, The Income
Tax Act, The Unemployment
Insurance Act, any future employment or Labour Relations legislation
or the common law.
[25]
The Applicant even conceded when he was cross
examined by Mr Mcineza for the Third Respondent that prior
to signing
the fixed term contract, he was an independent contractor.
[26]
In my view, I agree with the Third Respondent that
the continued renewal of the independent contractor contract
for a
period of over 10 years cannot give rise to an expectation,
objectively speaking, that the Applicant’s fixed term contract
of employment which ended on 28 February 2017 would be renewed.
[27]
In my understanding, for one to develop an
expectation as envisaged in section 186(1)(b) of the LRA, one
ought
to have been employed in terms of a fixed term contract of
employment.
[28]
Of course it does not end there. Other factors ought to be taken into
account in order to objectively
determine whether an expectation has
been created
.
In IMATU and Others vs City of Johannesburg Metropolitan Municipality
and Others
[6]
,
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 and promises made by the employer regardless
of the contractual terms which can say what
the employer promised and
the general conduct of the parties.”
[29]
According to the Applicant, in the year 2012, Mr
Motsoeneng, stated that free-lance contractors will be
converted into
permanent employees. This, in my view, cannot create an expectation.
It should be borne in mind that at that time
in 2012, the Applicant
was a freelance contractor but was offered a fixed term contract in
February 2014. Therefore, if what the
Applicant contends is true, one
would then have expected the Applicant to not sign the fixed term
contract but to have insisted
on permanent employment as per Mr
Motsoeneng’s statement.
[30]
The Applicant also sought to rely on a video clip
of Mr Motsoeneng where he addressed the staff (such was
played at the
arbitration). It is quite clear, in the video clip and as captured by
the second respondent in the award, that Mr
Motsoeneng was addressing
the employees in an encouraging nature. He speaks about the fact that
if one has talent then one should
use that talent. He further goes on
to congratulate certain employees. People that are multiskilled will
be rewarded and those
that are not multiskilled will not be gotten
rid of
[7]
.
The commissioner is correct in saying that nowhere during the address
does Mr Motsoeneng state that the fixed term contracts will
be
renewed.
[32]
The Applicant in his evidence stated that there was a memorandum
dated 8 November 2012 by Mr
Mosweu which said that freelancers should
be converted to permanency. This memorandum created a reasonable
expectation. The Applicant’s
evidence is however at odds with
him signing a fixed term contract in the year 2014. As I have already
mentioned in this judgment,
if the Applicant had an expectation he
would not have signed the fixed term contract. He should have taken
action against the employer
for failing to convert his employment to
one of permanency. Failure to lodge a dispute with the employer is
indicative of the fact
that no expectation was created. In other
words, he did not allude to his expectations.
Expectations
created during the fixed term contract (2014 to 2017)
[33]
The Applicant said that in the year 2016, two of
his colleagues who occupied the same position as his, had
their
contracts renewed. They were Mr Kalake and Mr Ngwenya. He had no
personal knowledge however, how their contracts came to
be renewed.
He was shown a list by Mr Kalake for contract renewal and his name
was on the list. He conceded when cross examined
that implementation
could only be done when the CFO had signed. The Applicant could not
prove that the CFO had signed, implementing
the decision. In the
absence of the signature, it is my view that that list has not been
approved and could therefore not have
created an expectation. Having
regard to the transcribed record, the Applicant conceded when cross
examined that, in the process
of appointing staff members the line
manager motivates and that motivation needs approval by the CFO.
[34]
The commissioner, correctly so, came to a
conclusion that attending a training course does not by itself
indicate an expectation of renewal. The respondent, in its heads of
argument, stated that the training was arranged months in advance
and
as such, the Applicant’s scheduled training cannot create a
reasonable expectation. This was not rebutted by the applicant.
I
align myself with the
IMATU
[8]
decision cited by the third respondent where it was said:
“
The subsidised
education agreement is not and was never intended to be a variation
of the contract of employment. The subsidised
education agreement is
a benefit that the Municipality gave to all its employees who
qualified thereof. Qualifying employees who
make use of the benefit
incur certain obligations. The fact that an employee made use of the
benefit does not ipso facto mean that
his/her employment contract is
varied or extended, neither does it mean that the municipality is
obliged to retain the employee
in its employ, beyond the clear
stipulations of the employment contract.”
According to the
appellant, there is, by virtue of the education agreement, an
inferred obligation on the municipality to keep the
employee in its
employ. This is a senseless argument. If it was so, it would mean
that the subsidised education contract would
be the basis of the
employment relationship and trump the contract of employment. This in
turn would mean that the employee will
practically be immune to
discipline and dismissal during that period. This cannot be. The
subsidised education contract is a separate
and distinct benefit that
the employee gets by virtue of the existence of an employer-employee
relationship which is governed by
the contract of employment. In my
view, the subsidised education agreement did not vary the contract of
employment…
The argument that the
subsidised education agreement gave the employee a reasonable
expectation that his contract will be extended
until 2013 is unsound
… A failure to renew a contract presupposes a failure to renew
the contract on the same terms and
conditions as previously enjoyed.
That was not the employee’s case. His case was that his
contract of employment was extended
to 2013 by the subsidised
education contract. That in my view is totally misplaced and wrong.”
[35]
The Applicant signed the fixed term contract on 28
February 2014. It is so stated in the contract itself
that the period
of employment shall be of limited duration, commencing on 1 March
2014 and automatically terminating on 28 February
2017.
[36]
The express terms of the contract are contained in
clause 1.1 to 1.4 of the contract:
‘
1.1
The period of employment shall be of limited duration commencing on
the 01 March 2014 and automatically
terminating on 28 February 2014.
In this instance, no separate notice of termination of the contract
shall be necessary.
1.2
You agree that your employment is of fixed duration and that, no
retrenchment procedure or severance
pay shall be applicable. On
expiry of the agreed period of your employment this contract of
employment terminates automatically,
which does not constitute a
dismissal by the SABC.
1.3
You accept that once the period set out in paragraph 1.1 expires,
there shall be no expectation
or renewal or continuation of the
contract of employment for a further period, nor for any indefinite
period.
1.4
Despite the contract of employment being of limited duration, the
contract shall either terminate
automatically on expiry of the period
set out in clause 1.1 or it could be terminated if the parties adhere
to the provisions of
clause 16 below.’
[37]
Having regard to this contract, it is clear that
the Applicant signed a fixed term contract which came to
an end by an
effluxion of time. The contract is clear that there would be no
expectation of renewal after the expiry of the contract.
It is
further clear that at the expiry of the agreed period, the contract
automatically comes to an end and that no notice is necessary.
[38]
I am alive to the fact that an express term in a fixed term contract
to the effect that the employee
entertains no expectation of renewal
is not a guarantee that no legitimate expectation can be found to
exist
[9]
.
In many cases, contracts that contain the standard clause stating
that the employee had no right of renewal or expectation of
renewal
i.e. the so-called disavowal clause can still create a reasonable
expectation. It is accepted on the authority of
Mediterranean
Woollen Mills (Pty) Ltd v SACTWU
[10]
that despite these clauses, a reasonable expectation could still
arise during employment if assurances, existing practices and
the
conduct of an employer led the employee to believe that there was
hope for a renewal, whether on a temporary or an indefinite
basis and
even then these factors are still subject to an objective
assessment.
[11]
[39]
In this case, I have already dealt with the
factors as enunciated by the case mentioned
supra
and it is my
view that after an objective assessment of these factors, no
legitimate expectation has been created.
[40]
Therefore objectively assessed, the Third
Respondent failed to place facts which could lead to a conclusion
that he had an expectation that his contract would be renewed or that
he had an expectation of permanency.
[41]
The commissioner was correct in finding that the
Applicant has not discharged the onus in terms of section
192 of the
LRA in proving the existence of his dismissal.
[42]
On the issue of costs, it is my view that law and
fairness dictates that no costs order should be made.
[43]
Therefore, the following order is made:
Order
1.
The application for review is dismissed
2.
There is no order as to costs.
_____________________
C.
Mogane
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: N.A Moyo, Instructed by Roy Ramdaw & Associates
For
the Third Respondent: SABC Group Employees Relations
[1]
No. 66 of 1995, as amended.
[2]
(2011) 32 ILJ 2728 (LC).
[3]
Unreported decision. Case number: JR2530/14
[4]
Ekurhuleni
West College v Education Labour Relations Council and Others
[2017]
ZALAC 75
at paras 17 and 18. See also: SA Rugby Players Association
v SA Rugby (Pty) Ltd
(2008)
29 ILJ 2218 (LAC) at para 44 where the test is articulated as
follows: “
The
enquiry is whether a reasonable employee, in the circumstances
prevailing at the time would have expected the employer to
renew his
or her fixed term contract on the same or similar terms.”
[5]
Pages 87 to 93 of the index to notices.
[6]
[2014] 6 BLLR 545
(LAC) at para 34
[7]
The commissioner in his award correctly captured the video recording
as captured in the transcribed record. At paragraph 40 of
the award
it says: “
If
you have talent, it must be known to the audience so that you
sustain the audience. Also consider if you have talent you can
do
well. You can do well as you a presenter but it depends on what kind
of content you sell… you see because if your talent
is dead
you will also be dead.”
Paras
41-43: “
So I think we need to balance the two colleagues.
But…about you…I ask to work on that project. I have
been working….Coming
to Lebogang. Congratulations I hear you
have a child. You are a mother now. Congratulations. When I say
multi-skilled, we are
not saying we should get rid of people who are
not multi-skilled. No, we are saying if you able can do
multi-skilled work, we
should reward you accordingly. You are not
going to lose your job because of that multi-skill if someone is not
multi-skilled.
But we are saying if someone can do 1,2,3 we should
recognize that talent and reward that person accordingly then
congratulate.
Para 43: You also have been doing well. I know that
they reward you, on air. SABC should put you back on air. Because
you see
your colleagues we talk SAT?(words inaudible) need to stress
that. And people with disabilities. We need to see them as
presenters.
We need to see them on air.”
[8]
Id
fn 6 at paras 41,42 and
[9]
Yebe
and University of Kwa Zulu Natal (Durban)
2007 ILJ 490 (CCMA).
[10]
1998 (2) SA 1099 (SCA).
[11]
Pikitup
Johannesburg (SOC) Limited v Muguto and Others
[2019] 10 BLLR 1146
(LC).