About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2019
>>
[2019] ZALCPE 25
|
|
Spellman and Others v South African Local Government Bargaining Council and Others (PR115/17) [2019] ZALCPE 25 (20 December 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case
No: PR115/17
In the matter between:
SIPHIWE
SPELLMAN
First
Applicant
THOZINA PORTIAL
KOTA
Second Applicant
NOZUKO
TUSWA Third
Applicant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL First
Respondent
NALEDI BURWANA-BISIWE
– N.O
Second Respondent
NELSON MANDELA BAY
MUNICIPALITY Third
Respondent
Heard: 15 August 2019
Delivered:
20 December 2019
JUDGMENT
LALLIE, J
Introduction
[1]
The applicants seek an order in terms of section 145 of the Labour
Relations Act
[1]
(the LRA),
reviewing and setting aside an arbitration award of the second
respondent (the arbitrator). The application is opposed
by the third
respondent (the municipality).
Background
[2]
The factual background to this dispute is, mainly, not in dispute. It
is correctly
captured by the arbitrator to include the fact that
amongst the responsibilities of the municipality is housing
development and
delivery in collaboration with the provincial and
national departments of Human Settlements. In discharging the
responsibility
the municipality employed a number of individuals in
its housing sub-directorate on fixed term contracts, including the
applicants.
Some were employed directly and others through agencies.
[3]
The first applicant was employed as a project manager through an
agency, Goba Consulting
(Goba), in September 2012. In January 2013 he
was appointed, through the same agency, on a 12 months’ fixed
terms contract
(FTC), as the housing accounts manager. The second
applicant was appointed directly by the municipality on a FTC as a
project manager
in May 2011. Her contract was renewed annually. The
third applicant was employed on a fixed term contract by the
municipality through
Goba as a project manager in 2013.
[4]
In 2014 the municipality entered into fixed term contracts of
employment with the
first and third applicants directly which it
renewed in 2015. When the last fixed term contracts of all the
applicants expired
on 31 May 2016, the municipality refused to renew
them prompting the applicants to refer an unfair dismissal dispute to
the first
respondent (the bargaining council). They claimed that the
refusal to renew their fixed term contracts constituted dismissal as
envisaged in section 186 (1)(b) of the LRA. Having arbitrated the
dispute, the arbitrator dismissed the applicants’ referral
on
the grounds that they had failed to prove their dismissal in terms of
section 186 (1)(b) of the LRA and the bargaining council
therefore
lacked jurisdiction to arbitrate their dispute. It is that decision
which the applicants seek to review and set aside
in this Court.
[5]
The applicants’ main grounds for review are that the
arbitrator’s decision
that the bargaining council lacked
jurisdiction is wrong. They submitted that the arbitrator
misconceived the nature of the enquiry
she had to conduct in
concluding that if no dismissal took place she would have no
jurisdiction to determine the reasonableness
of the expectation of
the renewal of their fixed term contracts. The applicants also
attacked the award on the grounds that the
arbitrator disregarded
relevant evidence, misconstrued vital evidence, made errors of fact
and interpreted and applied the provisions
of section 186 (1)(b) of
the LRA incorrectly.
[6]
The applicants further submitted that the decision reached by the
arbitrator was disconnected
from the material facts which had been
placed before her. The grounds for review were amplified in the
applicants’ supplementary
affidavit. The municipality opposed
the application mainly on the grounds that based on the evidentiary
material properly placed
before the arbitrator, she reached a correct
and reasonable decision. It added that the applicants’ attempt
to rely on evidence
which was not tendered at arbitration was
impermissible.
[7]
The decision under review is that the bargaining council lacked
jurisdiction to arbitrate
the applicants’ case because they had
failed to prove that they were dismissed as envisaged in section 186
(1)(b) of the
LRA. The test for review therefore is whether the
decision is correct and not whether it is reasonable
[2]
.
[8]
Both the applicants and the municipality correctly argued that the
approach the arbitrator
was required to have adopted is enunciated as
follows in
SA
Rugby Players Association and others v SA Rugby (Pty) Ltd and
others
[3]
:
‘
[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 CCAM 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 s 191 of the Act.’
The Court dealt with the
question of the onus of proof in the following way
[4]
:
‘
[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 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. As soon as
the other requirements of
s 186(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.’
[9]
The applicants sought to rely on both the incorrectness and
unreasonableness of the
arbitration award. Based on the correct test
for the review application at hand, I will consider only the relevant
grounds for
review, namely, those in which the correctness of the
award is challenged. The applicants submitted that the arbitrator
conducted
the enquiry incorrectly and consequently reached an
incorrect decision.
[10]
The arbitrator recorded, correctly, that the onus of proving the
dismissal had to be discharged by
the applicants. She correctly
stated that the test whether the applicants had a reasonable
expectation of the renewal of their
fixed term contracts was
objective. The arbitrator was further correct in taking into account
that without proof of dismissal the
bargaining council lacked
jurisdiction to arbitrate the dispute.
[11]
The applicants’ submission that the arbitrator failed to apply
her mind to relevant evidentiary
material properly placed before her,
is, as the municipality correctly argued, incorrect. Applying the
correct test for dismissal
as envisaged in section 186 (1)(b) of the
LRA the arbitrator referred to relevant authorities. She considered
the applicants’
submission that they should have been retained
and their fixed term contracts renewed and extended pending the
finalization of
the recruitment process to fill the positions they
occupied on a permanent basis in terms of the municipality’s
organogram
and/or up to May 2019. She considered the applicants’
argument that the municipality had sufficient funds to pay their
salaries
which it could source from unspent government allocated
funds which had been rolled over from previous years. The arbitrator
took
into account the applicants’ submission that when their
last fixed term contracts expired, the respondent needed their
services
which remained necessary until May 2019 when the Integrated
Human Settlements Programme Implementation Protocol Agreement (the
Protocol) expired.
[12]
It is common cause that the last two fixed term contracts were
concluded between each applicant
and the respondent. The contracts
had similar terms and ran from 2014 to 2015 and 1 June 2015 to 31 May
2016. In reaching her decision,
the arbitrator relied on the
following provisions of the fixed term contracts:
‘
[16]
The contract will terminate
16.1
automatically and without notice on expiry of the term referred to in
the contract, subject to any extension
or renewal. It is specifically
recorded that the contract shall not be interpreted in such a manner
as to create expectations of
a permanent appointment, extension or
renewal. The Municipality’s decision not to renew or extend the
contract shall not
constitute an unfair dismissal and the contractor
shall not be entitled to any form of compensation.
[18]
Variation
No addition to or
variation or mutually agreed cancellation or novation of this
contract and no waive of any right arising from
contract or its
breach or termination shall be of any force or effect unless reduced
to writing and signed by or on behalf of both
parties.
[25]
Notice
This contract is subject
to the MHSCG Business Plan Based Project issued by the National
Department. This contract is subject to
funding based on the above
project; therefore, the candidate is not entitled to expectation of
renewal of the contract after the
expiry date has occurred. The
employment shall commence on the stipulated starting date and shall
end upon the stipulated ending
date. The contractor agrees that this
contract is the whole contract between him/her and the Municipality
and that no representations,
promises or undertaking outside of this
written contract are binding on the Municipality.’
[13]
The arbitrator found that the terms and conditions of the fixed term
contracts were binding on
the parties. The applicants argued that the
award stands to be reviewed and set aside on the grounds that the
arbitrator adopted
a narrow interpretation of the basis of their
expectation and disregarded other relevant factors which supported
their version.
The municipality correctly argued that their
submission is not supported by the record including the award. Over
and above taking
the provisions of the fixed term contracts into
account, the arbitrator considered the other documents the applicants
sought to
rely on. She rejected the applicants’ evidence that
they were promised and given undertakings by managers that their
contracts
would be extended until the positions they occupied were
filled or the protocol expired. She gave reasons for rejecting their
argument
based on their contracts and relied on the following dictum
of
SA Rugby
(supra):
‘
clause 3.2 stating
that the contracts automatically terminated on the dates set out and
that the players acknowledged that they
had no expectation that their
contracts would be renewed on the terms contained therein or any
other terms is to me of critical
importance. This clause and other
exclusionary clauses referred to above were deliberately included in
the contracts in order for
them to be part of the contracts and to
mean what they were intended for. It would, therefore, be expected of
the appellants to
place more credible facts to make their expectation
reasonable in the face of clause 3.2. The mere ipse dixit that there
is an
expectation, based on flimsy grounds, would not suffice.’
[14]
Contrary to the applicants’ submissions, the arbitrator
considered the other grounds they
sought to rely on which include the
unreasonableness of the decision not to renew their fixed term
contracts, the availability
of work in terms of the protocol, the
availability of funds to pay their salaries and the absence of other
personnel to perform
their work. She concluded, based on the test for
reasonable expectation of the renewal of a fixed term contract that
the availability
of funds and work on its own was insufficient to
base a decision of the renewal of a contract on the same or similar
terms in the
absence of the evidence that a reasonable expectation
had been created. She concluded that the applicants had failed to
prove that
they were dismissed.
[15]
The applicants sought to rely on
Dierks
v University of South Africa
[5]
in attacking the correctness of the arbitrator’s decision on
the grounds that she failed to consider the availability of
work, the
purpose of the fixed term contract, the nature of the municipality’s
business/operation and its inconsistent conduct.
The applicants’
arguments are not supported by the evidentiary material presented at
arbitration. It was not disputed that
during the 2015-2016 financial
year the National and Provincial Human Settlements Departments and
the municipality agreed that
housing delivery for the municipality in
the following 3 years would be undertaken by the National Housing
Development Agency (NHDA).
One of the consequences of the agreement
was that the project on which the applicants were employed as well as
its funding came
to an end. On 1 July 2015 the HAD was charged with
the responsibility of discharging the implementing protocol leaving
the municipality
with no role to play.
[16]
The applicants did not succeed in proving that the arbitrator’s
decision was wrong. In
the circumstances there exists no grounds for
this Court to interfere with the arbitrator’s decision.
[17]
In the premises, the following order is made:
Order:
1.
The application for review is dismissed.
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant:
Advocate Ntsepe
Instructed
by Siya
Cokile Inc Attorneys
For
the Respondent: Advocate
Voultsos
Instructed
by W.
Langson and Associates
[1]
Act
66 of 1995, as amended.
[2]
IMATU
and Others v City of Johannesburg Metropolitan Municipality and
Others
[2014]
6 BLLR 545 (LAC)
[3]
(2008)
29 ILJ 2218 (LAC).
[4]
Ibid at para 44.
[5]
1999
(20) ILJ 1227 (LC).