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[2020] ZALCJHB 16
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Volschenk v Commission for Conciliation Mediation and Arbitration and Others (JR298/18) [2020] ZALCJHB 16 (31 January 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: JR298/18
In
the matter between:
CORNELIUS
GABRIEL VOLSCHENK
Applicant
And
COMMISSION FOR
CONCILIATION
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
PAUL PHUNDU
N.O
Second
Respondent
DELOITTE
CONSULTING (PTY) LTD Third
Respondent
Heard:
30 January 2020
Judgment
delivered: 31 January 2020
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside a rescission ruling
made by the second
respondent (the commissioner). In his ruling, the
commissioner refused to condone the applicant’s late referral
of an unfair
dismissal dispute.
[2]
The ruling is terse, and reads as follows:
I accept the Applicant’s
reasons for lateness. I find that the application is not lengthy. The
Applicant conceded that he
was temporarily employed on a fixed term
contract.
I accept the Respondent’s
submission that the Applicant was not dismissed but the employment
contract ended on 31-08-2017,
upon the natural expiration of his
fixed term contract/employment.
It is
my finding that the Applicant’s prospects of success are poor.
The prejudice that the
Respondent will suffer if it is granted outweighs the prejudice that
he Applicant will suffer if it is not
granted.
[3]
The applicable threshold is one of reasonableness. This court is
entitled to intervene
if and only if the arbitrator’s decision
is so unreasonable that no reasonable decision-maker could come to
that decision
on the available evidence.
[4]
The evidence available to the commissioner comprises a founding and
answering affidavit.
It was not in dispute that the applicant was
employed by the third respondent in June 2005, in terms of a series
of fixed term
contracts, until 31 August 2017, i.e. for more than 12
continuous years. In May 2017, the applicant was advised that the
business
unit in which he was engaged was not doing well and that his
fixed term contract would not be renewed. He was given a further
fixed
term contract, to expire on the completion of the project on
which the applicant was engaged on 31 August 2017, whichever came
first. It is not disputed that a Mr. Rheede advised the applicant
that he would be paid a severance package on the termination of
his
employment. On 31 August 2017, the applicant’s employment was
terminated. On 25 September 2017, the applicant’s
accrued leave
was paid, but not the severance package. The package was never paid.
On 23 November 2017, the third respondent advised
the applicant that
he would not be paid a package since his contract had expired by the
effluxion of time and no authorized undertaking
to pay a severance
package had been made. An unfair dismissal dispute was referred to
the first respondent on 1 December 2017,
together with the
application for condonation that is the subject of these proceedings.
In relation to his prospects of success
(the only relevant factor for
the purposes of this application), the applicant averred that he had
been in the third respondent’s
employ for more than 12
uninterrupted years, that the functions he performed continued beyond
the termination of his employment,
that he ‘had every
expectation reasonably possible’ that his employment would
continue and that his contract would
be renewed, as he for all
intents and purposes was permanently employed despite the fact that
he was engaged in terms of fixed
term contracts concluded on a
continuous basis. The applicant further averred that his dismissal
was substantively and procedurally
unfair since the third respondent
could have found suitable alternative employment, and because it had
followed no procedures whatever
in effecting his dismissal. In regard
to the factor of prejudice, the applicant contended that he would
suffer irreparable harm
should he be denied the opportunity to refer
his dispute to the CCMA.
[5]
In the answering affidavit, the third respondent averred that the
applicant had not
been dismissed because his fixed term contract came
to an end. Further, the applicant’s contracts had always been
linked
to specific project ‘deliverables’. Further, it
was improbable that the applicant could have expected a continued
employment
relationship as he was aware that the renewal of the
project on which he was engaged was not envisaged. In regard to the
severance
package, the third respondent averred that Rheeder had no
authority to offer the payment of a package and that in any event,
the
applicant was ‘paid significantly over the earnings
threshold’ and thus had no legitimate claim to a package.
[6]
In his replying affidavit, the applicant averred that on consulting
his legal representative
on the issue of severance pay, he realised
that the decision to terminate his employment may fall foul of the
law, and reiterated
his contention that the termination of his
contract constituted an unfair dismissal.
[7]
The test that the commissioner was obliged to apply is
well-established, and has its
roots in
Melane v Santam Insurance
Co Ltd
1962 (4) SA 531
(A). Condonation is not there merely for
the asking, nor are applications for condonation a mere formality
(see
NUMSA v Hillside Aluminium
[2005] ZALC 25
;
[2005] 6 BLLR 601
(LC);
Derrick Grootboom v National Prosecuting Authority & another
[2014] 1 BLLR (CC)). A party seeking condonation must make out a case
for the indulgence sought and bears the onus to satisfy the
court
that condonation should be granted. The commissioner was required to
exercise a discretion, having regard to the extent of
the delay, the
explanation proffered for that delay, the applicant’s prospects
of success, and the relative prejudice to
the parties that would be
occasioned by the application being granted or refused.
[8]
As I have indicated, the parties are agreed that the commissioner’s
dealing
with the factors of the extent of the delay and the
explanation for it are not disputed. The present case turns on
whether the
commissioner’s decision on the applicant’s
prospects of success (the point on which his decision turned) can be
said
to be reasonable, having regard to the material that served
before him. In this regard, the applicable threshold is one that
enables
the court to assess, on a prima facie basis, whether there
are prospects of success. The formulation is often expressed as a
requirement
that the applicant provide enough information about the
prospects of success that, if proved in the main action, he or she
would
be entitled to relief.
[9]
The only discernible reason for finding that the applicant had poor
prospects of success
is the fact that he was engaged in terms of a
fixed contract that expired on 31 August 2017, and that there was
therefore no dismissal.
This formulation begs the question of the
existence of a dismissal as defined in the LRA, a definition that
transcends the termination
of an employment contract in purely
contractual terms. Section 186 (1)(b) of the LRA defines a dismissal
to include a refusal or
failure to renew a fixed term contract on the
same or similar terms in circumstances where the employee reasonably
expected the
employer to renew the contract. This provision was
incorporated into the LRA to prevent employers from circumventing
unfair dismissal
laws by entering into a series of fixed term
contracts and then relying on the termination of one of them as a
termination of employment
consequent on the effluxion of time. The
test to be applied is one that requires the determination of the
existence or otherwise
of a reasonable expectation of renewal. This
requires an examination of all of the relevant factors, including the
number of times
that the contract has been ‘rolled over’,
the terms of the contract, the nature of employment, and the like. In
short,
there must be a subjective expectation of renewal that is
objectively reasonable.
[10]
This is not the enquiry that the commissioner undertook, even to
determine whether the applicant
has made out a prima facie case for
the purposes of establishing his prospects of success. Had the
commissioner applied himself
to the evidence, the subjective
expectation of renewal was undisputed, and while the reasonableness
of the expectation was contested,
none of the relevant factors was
considered. Of particular significance is the fact that the applicant
had been employed by the
third respondent for more than 12 years on a
series of fixed term contracts, all of which were renewed but for the
contract that
expired on 31 August 2017. The commissioner failed to
apply the correct test and failed to consider all of the relevant
facts.
In these circumstances, in my view, it was unreasonable to
conclude, on the basis of the affidavits before him, that the
applicant
had poor prospects of success simply on account of the
expiry of his fixed term contract. The commissioner’s ruling
thus
stands to be set aside.
[11]
The parties were agreed that in the event of the condonation ruling
being set aside, the court
should substitute the ruling with a ruling
to the effect that condonation is granted. Finally, this is a matter
where for the purposes
of s 162 the interests of the law and fairness
are best served by there being no order as to costs.
I make the following
order:
1.
The condonation ruling issued by the second
respondent on 12 January 2018 is reviewed and set aside.
2.
The ruling is substituted by the following:
‘
The
late referral of the applicant’s unfair dismissal dispute is
condoned’.
3.
The first respondent is directed to convene
a conciliation meeting within 30 days of the date of this judgment.
André van Niekerk
Judge
REPRESENTATION
For
the Applicant: In person
For the Respondent: Mr. D
Short, Fairbridges Wertheim Becker