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[2019] ZALCPE 5
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National Union of Metal Workers of South Africa and Others v Transnet SOC t/a Transnet Freight Rail and Others (PR103/2016) [2019] ZALCPE 5 (26 March 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not reportable
Case No: PR 103/2016
In the matter between:
NATIONAL UNION OF
METAL WORKERS
OF SOUTH
AFRICA
First Applicant
Z. QHOBESHIYANE AND 32
OTHERS
Second – Further
Applicants
And
TRANSNET SOC t/a
TRANSNET FREIGHT RAIL
First Respondent
TRANSNET BARGAINING
COUNCIL
Second
Respondent
MALUSI MBULI
N.O
Third Respondent
Heard:
14 June 2018
Delivered:
26 March 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The applicants seek an order reviewing and setting aside the
arbitration
award issued by the third respondent (Arbitrator) under
the auspices of the first respondent (TBC). In the award, the
Arbitrator
dismissed the individual applicants’ claim that they
were dismissed by the second respondent (Transnet), as they had
failed
to demonstrate that they held a reasonable expectation of a
renewal of their limited duration contracts of employment.
[2]
The individual applicants commenced employment in terms of fixed term
contracts of employment with Transnet as general workers in 2011 and
August 2013 respectively. The contracts were renewed annually
until 31 March 2015 when Transnet refused to renew them.
The individual applicants were informed of Transnet’s
intention
in writing on 25 February 2015 and also in a meeting held
with them in the same month that the contracts would
not be renewed.
[3]
Aggrieved, the individual applicants as assisted by NUMSA had
approached
the TBC with a referral, alleging that they were unfairly
dismissed as they had a reasonable expectation that their fixed term
contracts would be renewed on the same or similar terms.
The
arbitration proceedings:
[4]
When the matter came before the Arbitrator for arbitration, the
applicants’
case as per the testimony of Messrs Zukile Mthotywa
and Mziyanda Tshali was that the expectation of a renewal was based
on the
following;
4.1
They confirmed that before the contracts came to an end, they were
notified
in writing that the contracts would not be renewed. This was
also followed up with a meeting held with all the affected employees.
4.2
An expectation was however created that the contracts would be
renewed as Transnet
had done so in the past, and further since they
were advised by Transnet that 1472 permanent posts were to be created
after the
expiry of the contracts.
4.3
The individual applicants had skills, were trained on the job, and
were further
advised that they would be expected to apply for the
permanent positions to be created.
4.4
Vacant posts were indeed made available and the applicants had an
opportunity
to apply for those posts.
4.5
The nature of the work done by the individual applicants involved
on-going maintenance
for the rail, and there was thus still work
available for them.
4.6
In the same vein, they confirmed that some of them were employed on
specific
projects, and management had not specifically guaranteed
that the jobs would continue.
[5]
Transnet’s case as presented by its witness, Arthur Mdingi was
essentially
that the individual applicants were employed on specific
project based operations. He had called the affected employees to a
meeting
to advise them of the non-renewal of the contracts, with the
reason being that the specific projects had come to an end. He had
confirmed that the individual applicants were trained on the job, but
however contended that this was an inherent requirement of
the jobs,
and pertained mainly to safety.
[6]
Mdingi had further testified that the individual applicants could
only
be employed if there were projects that required their services,
or where budgets were allocated in respect of those projects. He
had
denied that the individual applicants were replaced or that they were
at any stage informed that their contracts would be renewed.
The
Arbitrator’s conclusions:
[7]
The Arbitrator’s conclusions were as follows;
7.1
To the extent that the individual applicants had conceded that
Transnet had
advertised some posts and that they were encouraged to
apply, if they were not appointed, their dispute related to an unfair
labour
practice in respect of non-promotion, which dispute they had
not referred.
7.2
There were no provisions in the fixed term contracts that guaranteed
a renewal,
and the onus was upon the applicants to prove that indeed
a reasonable expectation of a renewal was created.
7.3
There was however no evidence to suggest that any of Transnet’s
managers
had made a promise to the applicants that the contracts
would be renewed, which was consistent with Mdingi’s testimony
that
the individual applicants always knew that they were on fixed
term contracts, and that they would be advised at some point of the
terminations of those contracts.
7.4
The fact that the contracts were previously renewed did not mean that
a reasonable
expectation of renewal was created. There was no
representation made by Transnet that the contracts would be renewed.
7.5
Since the individual applicants were employed on specific projects,
they had
not demonstrated that other similarly employed employees
were still employed on those projects, or that those projects were
still
on-going.
7.6
The applicants had failed to discharge the onus of proving that
Transnet had
created a legitimate expectation that their fixed term
contracts would be renewed.
The
legal framework:
[8]
Section
186(1)(b) of the Labour Relations Act (LRA)
[1]
upon which the applicants relied in claiming a dismissal provides
that;
“
[A]n 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)
(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.”
[9]
As it was correctly stated on behalf of the applicants, an enquiry
into
whether there was a dismissal in terms of section 186(1)(b) of
the LRA goes to jurisdiction. The applicable test on review in such
cases is therefore not whether the arbitrator acted reasonably, but
whether he was correct in determining that the individual applicants
were not dismissed on account of them failing to demonstrate that
they had a legitimate expectation that their fixed term contracts
of
employment would be renewed. Once the arbitrator came to a conclusion
that the applicants had not discharged the onus placed
on them under
the provisions of section 192(1) of the LRA to demonstrate that they
were dismissed, it followed that the TBC lacked
jurisdiction.
[10]
Still on
the question of onus, an employee relying on the provisions of
section 186(1)(b) of the LRA when claiming an unfair dismissal,
bears
the onus of establishing that he/she had a reasonable expectation
that his/her contract would be renewed. In
SAPRA
& Others v SARPU & others
[2]
the court explained the test as follows:
“
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…. A mere
ipse dixit
that there is an expectation, based on flimsy grounds, would not
suffice”.
[11]
An enquiry
into the existence of a legitimate expectation is a factual one, with
the primary focus being on the objective facts
giving rise to the
alleged expectation
[3]
. This
therefore implies that the Arbitrator in this case was required to
determine whether on the facts before him, objectively
considered, it
had been established that the individual applicants held a reasonable
expectation that their fixed term contracts
of employment would be
renewed.
The
grounds of review and evaluation:
[12]
In seeking that the award be reviewed, it was submitted on behalf of
the applicants that
the Arbitrator’s finding that no dismissal
had occurred for the purposes of section 186(1)(b)(i) of the LRA was
wrong, as
the issue before him was whether the expectation existed,
and not whether Transnet had created the expectation. It was
submitted
that in coming to a wrong finding, the Arbitrator ignored
certain material evidence including that;
12.1
Transnet’s management had given assurances to the individual
applicants that attempts would
be made to secure work for them;
12.2
That Transnet despite advising the individual applicants of the
termination of their contracts
had nonetheless invested in their
training, and continued with the contracts until 30 June 2015
12.3
That Transnet Bargaining Council had issued a circular containing a
favourable forecast as to
the availability of employment
opportunities within Transnet, and thus predicted the creation of
1 400 jobs;
12.4
That Transnet had conveyed to the individual applicants that
employees with the longest service
and highest skills would be
retained, and further that employees with shorter service were
however retained.
12.5
That work was available at other projects in the area.
12.6
That the individual applicants were aware that they would be
redeployed to other projects during
the currency or upon the expiry
of the contracts.
12.7
That on the evidence of Mdingi, there was still work available even
though they were not employed
on those projects.
[13]
Transnet contends that the applicants’ grounds of review are
unsustainable. I agree
that
the facts as were
placed before the Arbitrator when objectively considered, cannot have
led to any conclusion that a reasonable
expectation existed or was
created by Transnet that the fixed term contracts of the individual
applicants would be renewed for
the following reasons;
13.1
The Arbitrator’s findings that a previous renewal on its own
could not have created an
expectation of a future renewal are
unassailable. Various considerations leading to a renewal should be
taken into account specifically
since it was common cause that the
individual applicants were employed to render their services in
specific projects, which I did
not understand from the facts to be
infinite.
13.2
Any assurances from Transnet to the individual applicants that future
or permanent placement
would be created for them even if made, were
meaningless as it was more a question of whether any such post were
available. As
it was correctly pointed out on behalf of Transnet, any
assurances or promises to find future jobs could only have been
realised
if those jobs were available. Thus those assurances or
promises even if made, cannot be said to have created a legitimate
expectation.
13.3
To further put paid to any contention that the promises of future
employment could not have created
any expectation, at the time that
those promises were made, a month later, the individual applicants
were given notices of termination,
which can only imply that those
promises could not be fulfilled at the time, as the work was no
longer available.
13.4
At best for the individual applicants, the only assurances made by
Transnet were that they could
be required to apply for positions as
and when they became available in the future after the expiry of
their contracts. Even then,
where there is a requirement to apply for
a post when it arises, I fail to appreciate how based on that fact
alone one can claim
a legitimate expectation that work would be
provided, or that the individual would be successful.
13.5
The reliance by the individual applicants on the fact that they were
trained and thus an expectation
was created is equally misplaced. On
Transnet’s version, the training was merely part of the
inherent requirements of the
work that the individual applicants
performed. Furthermore, such training was related to safety, which is
obviously mandatory depending
on the nature of functions they were
required to perform during the tenure of the fixed term contracts.
The training done by the
individual applicants in order to assist
them to perform their functions during the tenure of the fixed term
contracts could not
have created an expectation that work, especially
of a nature that is project specific would always be available.
13.6
The applicants’ contention that the TBC had issued a circular
to the effect that opportunities
of employment at Transnet were
predicted and thus created an expectation is equally red-herring.
According to Transnet, any reference
to future job creation by the
TBC was merely in reference to a collective agreement concluded
between the parties to the main agreement,
which had equally provided
that fixed term contracts were to come to an end at the end of their
term, and that previous renewals
did not justify an expectation of
further renewals. I therefore fail to appreciate the basis of any
reliance on a circular issued
by the TBC in that regard.
13.7
It was common cause that the individual applicants were placed at
specific projects in terms
of their fixed term contracts. There were
further other projects undertaken by Transnet in other areas where it
had employed other
employees under similar conditions as the
individual applicants. The fact that other projects may have been
on-going at the time
that the individual applicants’ contracts
came to an end, cannot by any stretch of imagination have create an
expectation.
This is so, in that, each project had its own specifics,
and the fact that some of the individual applicants could have been
deployed
to other projects during the tenure of their contracts could
not have raised any expectation that they would remain on their
redeployed
projects when their own came to an end.
[14]
Having had regard to the evidence and documentary material adduced at
the arbitration proceedings,
I am satisfied that the Arbitrator was
alive to the issues he was required to determine. The Arbitrator had
also objectively applied
his mind to those issues, and came to a
correct conclusion. In the end,
any reasonable
employee in the position of the individual applicants in the
circumstances prevailing at the time could not have
claimed that
he/she had expected Transnet to renew his or her fixed term contract
on the same or similar terms. Any grounds of
an expectation as argued
by or on behalf of the applicants was at best imagined or based on
flimsy grounds, and were thus unsustainable.
[15]
I have had regard to the requirements of law and fairness, and hold
the view that a costs
order is not warranted in this case.
[16]
Accordingly, the following order is made;
Order:
1. The
applicants’ application to review and set aside the arbitration
award issued by the third respondent
is dismissed.
2.
There is no order as to costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants:
F Le
Roux
Instructed
by:
Gray
Moodliar Attorneys
For
the Second Respondent:
Xolani Njokweni of Knowles Husain Lindsay
[1]
Act 66 of 1995 (as amended)
[2]
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC) at paragraphs [44] and [46]
[3]
Walele
v City of Cape Town & others
[2008] ZACC 11
;
2008
(6) SA 129
(CC)