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[2020] ZALCJHB 186
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Motlaase v Commission for Conciliation, Mediation and Arbitration and Others (JR 1802 /2017) [2020] ZALCJHB 186 (18 June 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JR 1802 /2017
In the matter between:
KELETSO
MOTLAASE Applicant
and
THE COMMISSION FOR
CONCILIATION,
ARBITRATION
AND MEDIATION
First
Respondent
NEO
MOLOI
N.O
Second
Respondent
LAFARGE
INDUSTRIES (PTY) LTD
Third
Respondent
Enrolled:
11 June 2020
Delivered:18
June 2020
In
view of the measures implemented as a result of the Covid-19
outbreak, this judgment was handed down electronically by circulation
to the parties' representatives by email. The date for hand-down is
deemed to be on 18 June 2020.
JUDGMENT
PRINSLOO, J
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award issued on 15 August 2017 under case number
GAJB6450-17 where the
Second Respondent (the arbitrator) found that
there was no reasonable expectation created and dismissed his case.
[2]
The Third Respondent (Respondent) opposed
the application.
[3]
The matter was enrolled for hearing on 11
June 2020. In accordance with the provisions of the ‘Urgent
directive in respect
of access to the Labour Court’ dated 28
April 2020, which is applicable with effect from 4 May 2020 until the
end of the
July 2020 recess, the parties agreed that this matter be
disposed of without oral argument. I have considered the papers filed
as well as the written heads of argument submitted by the parties.
Background:
[4]
In 2016, the Respondent embarked on a
restructuring exercise, which resulted in a moratorium on permanent
appointments. However,
crucial positions were filled on a fixed term
basis.
[5]
The Applicant was employed by the
Respondent on a fixed term contract with effect from 1 September 2016
until 28 February 2017.
He was employed in the position of process
control system technician (PCST) at the Respondent’s
Randfontein operation in
the cement division. The PCST position was
regarded as a critical position.
[6]
The Applicant’s contract provided
inter alia,
that
his contract would automatically terminate on 28 February 2017 and
that he accepted that his employment during the fixed period
would
not under any circumstances give rise to an expectation of a
continued employment or any employment relationship beyond the
fixed
period.
[7]
The Applicant’s contract
automatically terminated on 28 February 2017 due to the effluxion of
time. It was not renewed by
the Respondent and the Applicant
subsequently referred an unfair dismissal dispute to the First
Respondent the Commission for Conciliation,
Mediation and Arbitration
(CCMA). His case was that he had a legitimate expectation that his
contract would be renewed and it was
not renewed.
The evidence adduced:
[8]
The
issue to be decided by the arbitrator was whether the termination of
the Applicant’s contract fell within the meaning
of dismissal
as contemplated in section 186(1)(b) of the Labour Relations Act
[1]
(LRA). The Applicant’s case was that he had expected his
contract to be renewed or to be employed on a permanent basis.
[9]
In order to assess the arbitrator’s
findings, it is necessary to consider the evidence adduced at the
arbitration proceedings.
[10]
The Respondent called Ms Kilifele as a
witness. She referred to requests made by managers to fill vacant
positions. She explained
that the positions that existed, were vacant
and permanent but could not be filled on that basis because of the
moratorium placed
on recruitment.
[11]
Ms Kilifele explained that the Respondent
was in the process of restructuring its different sites and the
cement division, where
the Applicant was employed and had a number of
sites that were part of the restructuring process. The Respondent
could only appoint
a limited number of persons in critical positions
and on a fixed term basis due to the restructuring and moratorium
placed on recruitment.
[12]
On 30 August 2016, the Respondent issued a
letter to the Applicant, offering him a fixed term contract from 1
September 2016 until
28 February 2017. It was specifically recorded
that he accepted that his employment during the fixed period would
not in any circumstances
give rise to an expectation of continued
employment or any employment relationship beyond the fixed period.
The Applicant accepted
the offer and Ms Kilifele explained that even
before the Applicant commenced his employment, he knew that his
employment would
be for a period of six months only and that the
Respondent never created any other expectation.
[13]
Ms Kilifele testified that after the
Applicant entered into the fixed term contract with the Respondent,
there was never any offer
extended to him to renew the contract, even
after the termination of the contract, the Respondent did not make
any attempt to negotiate
with the Applicant to be employed and there
was no expectation that he would report for duty beyond that period.
[14]
It is evident from the transcribed record
that in cross-examination, the Applicant posed a number of questions
relating to restructuring
and retrenchment to Ms Kilifele. Those
questions were not relevant to the issue that the arbitrator had to
decide and were not
helpful to his case.
[15]
It was put to Ms Kilifele that the position
that the Applicant was employed in was very critical and that it had
to be filled on
a permanent basis, more so because the previous
incumbent of the position held the position for a period of nine
years. Ms Kilifele
explained that although the position was critical,
it was not ranked to be that critical to call for the appointment of
a permanent
incumbent.
[16]
The Applicant testified that a legitimate
expectation was created whilst he was working as a fixed term
employee in the position
of PCST. This is so for two reasons.
Firstly, when he joined the Respondent, it was never explained to him
why he was appointed
in a fixed term position and his case is that
there was no sound reasoning behind his fixed term employment.
Secondly, the position
he occupied was a permanent position and it
was available. It was a critical position, with tasks only he could
perform and he
was performing very well.
[17]
The Applicant testified that in January
2017 his manager, Mr Gumede, did his performance appraisal and that
created the impression
that he would be employed beyond February
2017. Furthermore, the Respondent enrolled him for training courses
and the last course
which he attended, was in December 2016. In his
view, it could not be that the Respondent would send him on training
in December
2016 when his contract was to terminate in February 2017.
The manner in which the Respondent invested in him, created the
impression
that his contract would not terminate in February 2017.
[18]
It was put to the Applicant in
cross-examination that the fact that he was sent for training and
that he was performing the job
he was employed to do, do not render
him a permanent employee. As an employee of the Respondent, he was
sent for training to qualify
him for the job he had to perform and as
an employee he was expected to perform his job. Furthermore, every
employee underwent
a performance appraisal process, which could
result in a salary adjustment.
[19]
The Applicant conceded that he was never
told that he would be permanently employed. He did not return to work
on 1 March 2017 because
the Respondent made it clear that his
employment had ended. He did a medical exit and received a formal
termination letter.
The arbitrator’s
findings
[20]
In his analysis of the evidence, the
arbitrator recorded that he had to determine whether or not a
legitimate expectation was created
for the Applicant’s contract
to be renewed or for the position he had occupied to be made
permanent.
[21]
The arbitrator recorded that the onus was
on the Applicant to prove that he had a reasonable expectation that
his fixed term contract
would be renewed.
[22]
In
the award reference is made to
University
of Pretoria v CCMA and Others
[2]
where
the Labour Appeal Court (LAC) has held that section 186(1)(b) of the
LRA does not provide for employees on fixed term contracts
to claim
that they had a reasonable expectation of permanent employment. The
arbitrator found that a fixed term contract does not
give rise to an
automatic expectation of permanent employment and he dismissed the
Applicant’s claim in this regard.
[23]
In respect of section 186(1)(b) of the LRA,
the arbitrator held that if the employer created a reasonable
expectation that the contract
would be renewed or extended, a claim
in terms of the said section would be legitimate.
[24]
The arbitrator analysed the evidence of Ms
Kilifele, which was that due to the moratorium on recruitment, only
critical positions
could be filled, after proper motivation and
authorisation by senior management. The PSCT position was only
authorised to be filled
on a fixed term contract and was not regarded
as critical for permanent appointment.
[25]
The arbitrator dealt with the factors
relied upon by the Applicant in support of his case that a legitimate
expectation was created.
The arbitrator rejected the Applicant’s
notion that a reasonable expectation was created because he performed
his work well
and that everyone was happy with his work on the basis
that it is expected of every employee to perform their work well and
that
as such it does not create a reasonable expectation of renewal
of a contract.
[26]
The arbitrator accepted that the PCST
position was a critical position but that it was approved to be
filled on a fixed term contract
due to the moratorium on
appointments. He found that the mere fact that a position is
critical, does not create an automatic expectation
of renewal of the
contract, unless there had been a suggestion or promise by an
authorised person to that effect. The arbitrator
held that the fact
that a performance appraisal took place and that the possibility of
increasing the Applicant’s salary
was raised, is not sufficient
to conclude an expectation of contract renewal. The only possibility
was that of an increase of salary,
not a possibility of extending or
renewing the contract of employment.
[27]
In respect of the training that the
Applicant received, the arbitrator held that the training was for the
Applicant’s benefit
and was to equip him to perform his duties
efficiently.
[28]
In conclusion, the arbitrator dealt with
the test for reasonable expectation, which is two-fold –
firstly whether the employee
actually expected the contract to be
renewed and secondly whether the expectation was reasonable. He held
that the Applicant had
an expectation that his contract would be
renewed, but his expectation was based only on his hopes and was
therefore unreasonable
as no expectation was created that his
contract would be renewed.
[29]
The termination of the Applicant’s
contract did not amount to a dismissal as envisaged in section
186(1)(b) of the LRA and
the Applicant’s case was dismissed.
The grounds for review
[30]
It
is trite that a party who seeks to review an arbitration award is
bound by the grounds for review contained in the review application,
subject to one qualification namely that the Court is obliged to deal
with a point of law apparent from the papers
[3]
.
[31]
In
Northam
Platinum Ltd v Fganyago NO and Others
[4]
it was held that:
'In my view, the law is
very clear that a ground for review raised for the first time in
argument cannot be sustained. The basic
principle is that a litigant
is required to set out all the material facts on which he or she
relies in challenging the reasonableness
or otherwise of the
commissioner's award in his or her founding affidavit.
[32]
In casu,
the
Applicant raised two main grounds for review in his founding
affidavit. The first ground for review is that the arbitrator was
biased and the second ground is that the arbitrator failed to apply
his mind. The Applicant filed a supplementary affidavit wherein
he
elaborated on the same grounds for review, to wit the arbitrator’s
failure to apply his mind to the evidence and bias.
I will deal with
the grounds for review in turn
infra.
[33]
It is evident from the Applicant’s
heads of argument that the review application is pursued on the
ground of reasonableness.
The test on review
[34]
Section
186(1)(b) of the LRA provides for dismissal to mean that 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 at
all. In such a case the existence or not of the dismissal determines
whether the CCMA or bargaining council has jurisdiction
to adjudicate
the dispute. As soon as the requirements of section 186(1)(b) have
been satisfied, it would be found that the employee
had been
dismissed and the employer would have to establish that the dismissal
was both procedurally and substantively fair
[5]
.
[35]
In
De
Milander v Member of the Executive Council for the Department of
Finance: Eastern Cape and others
[6]
the
Labour Appeal Court held that:
‘
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 & others v SA Rugby (Pty) Ltd &
others; SA Rugby (Pty) Ltd v SARPU & another
(2008)
29
ILJ
2218 (LAC)
[2008] ZALAC 3
; ;
[2008] 9 BLLR 845
I (LAC) at para 39). The question whether, on the
facts of the case, a dismissal had taken place within the ambit of s
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.’
[36]
In casu,
the
Applicant’s case is that he had a reasonable expectation that
his contract would be renewed or that he would become a
permanent
employee but instead the Respondent failed to renew his fixed-term
contract or to appoint him on a permanent basis. The
Applicant had to
establish a 'reasonable expectation' that his contract was to be
renewed and that he was indeed dismissed. This
clearly involved a
determination of a jurisdictional fact.
[37]
The
question whether a dismissal had taken place or not, goes to the
issue of jurisdiction and it has been confirmed on numerous
occasions
that the review test as laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[7]
does not find application in reviewing a jurisdictional ruling or
finding
[8]
.
[38]
This
Court has to decide whether the arbitrator was right or wrong in
finding that no legitimate expectation was created, thus that
the
Applicant was not dismissed. The question is not whether the finding
that the Applicant was not dismissed was justifiable,
rational or
reasonable
[9]
and it is also not
whether the conclusion reached by the arbitrator was one that a
reasonable decision maker could not reach.
[39]
In
considering whether an employee was dismissed or not, this Court has
to consider the evidence that was placed before the arbitrator
during
the arbitration proceedings and has to decide the existence of
dismissal and the issue of jurisdiction
de
novo
and of its own accord
[10]
.
[40]
In
the event that the review Court finds that the arbitrator was wrong
in respect of his findings regarding the existence of a dismissal
and
thus jurisdiction, the award falls to be set aside on review. In the
event that the Court finds that the arbitrator correctly
found that
an employee was dismissed, the reasonableness test as set out in
Sidumo
[11]
will apply to the arbitrator’s findings on procedural and
substantive fairness.
Analysis of the
grounds for review
Bias
[41]
The first ground for review is that the
arbitrator was biased.
[42]
Bias in the context of a review application
is regarded as a patent gross irregularity. The principles related to
the concept of
bias had been set out by the Courts and a brief
overview of those principles is necessary.
[43]
In
Turnbull-Jackson
v Hibiscus Coast Municipality and others (Ethekwini Municipality as
amicus curiae)
[12]
the
Court
held:
‘
Allegations
of bias, the antithesis of fairness, are serious. If made with a
sufficient degree of regularity, they have the potential
to be
deleterious to the confidence reposed by the public in
administrators. The reactive bias claim stems from unsubstantiated
allegations of corruption and incompetence. These are serious
allegations, especially the one of corruption. Yes, if public
officials
are corrupt, they must be exposed for what they are: an
unwelcome, cancerous scourge in the public administration. But
accusations
of corruption against the innocent may visit them with
the most debilitating public opprobrium. Gratuitous claims of bias
like
the present are deserving of the strongest possible censure.’
[44]
In
Sepheka
v Du Point Pioneer (Pty) Ltd
[13]
the Court threw caution as follows in respect of allegations of bias:
‘
Any
allegation of bias, especially on the part of a Judge of this Court,
must be substantiated by a proper factual basis, must not
be based on
mere speculation and conjecture, and must be proved by the party
alleging bias.’
[45]
It is a trite principle of our law that in
order to succeed with a claim of bias, more than mere conjecture must
be shown. It happens
in the normal course of events that litigants
could harbour a sense of apprehension against those administering
justice. This of
course does not mean that anytime when a litigant is
not happy with the proceedings or that the judgment or outcome is not
in that
party’s favour, a claim of bias would suffice.
[46]
The
Courts have time and time again warned against litigants making
unfounded allegations of bias on the part of presiding officers
tasked with deciding disputes, without cogent proof to substantiate
those allegations.
[14]
[47]
It is a natural result of adversary
litigation that one party would be successful and that the other
party would fail. The mere
fact that the outcome went in favour of
the other party, does not render the presiding officer or decision
maker biased. More is
needed.
[48]
In casu,
the
Applicant claims that the arbitrator was biased. To succeed with this
ground for review, the Applicant has to prove bias and
he has to
substantiate his claim by a proper factual basis.
[49]
In the founding affidavit this ground is
supported by the following averment: ‘
The
second respondent was biased in not putting emphasis in (sic) the
facts that the third respondent hired Les (former employee
who
resigned) on the fixed term contract while I was still employed,
later terminated my contract, after three months, Les was
made
permanent without advertising that position.’
[50]
These averments do not constitute bias, but
rather unhappiness with the way in which the arbitrator dealt with
the evidence before
him.
[51]
In his supplementary affidavit, the
Applicant stated that the arbitrator conducted the proceedings in
such a way that his conduct
gave rise to a reasonable apprehension of
bias. This is so because the arbitrator issued a ruling on 11 July
2017 which directed
that the matter be rescheduled for arbitration on
the ground that the dispute be arbitrated in terms of section 198 of
the LRA.
The Applicant’s case is that he is excluded from the
operation of section 198 as he earned above the threshold and the
CCMA
would not have jurisdiction to adjudicate a dispute in terms of
section 198 of the LRA.
[52]
The Applicant had to approach this Court on
an urgent basis to interdict the intended proceedings and to order
the arbitrator to
issue an award in respect of the dispute that was
indeed arbitrated.
[53]
The Applicant’s case is that the
arbitrator, in acting as aforesaid, intervened in the proceedings
with the intention to advance
the Respondent’s case to his
detriment.
[54]
In my view, there is no merit in this
ground for review.
[55]
The arbitrator’s intention to
reschedule the dispute for arbitration and for the matter to be
arbitrated in respect of another
section of the LRA, is unknown and
in any event it never materialised as it was interdicted by this
Court. Even if the arbitrator’s
intention was to advance the
Respondent’s case by the rescheduling of the arbitration, as
alleged by the Applicant, it did
not happen. Whatever the intention
was, it never went over to action and that intended process had no
bearing on the outcome of
the arbitration proceedings that led to the
arbitration award, which is the subject of this review application.
[56]
The Applicant failed to prove bias and to
substantiate his claim by a proper factual basis.
Failure to apply his
mind
[57]
The crux of the second ground for review
raised by the Applicant as set out in his founding and supplementary
affidavits is that
the arbitrator failed to apply his mind, that he
had ignored evidence or failed to consider evidence. The Applicant
submitted that
the arbitrator’s failure as aforesaid, resulted
in a decision that a reasonable decision maker could not reach. The
argument
put forward in the heads of argument, is that the
arbitrator’s decision is one that a reasonable decision maker
could not
reach, given the evidence that was placed before him. The
grounds for review are firmly based on reasonableness.
[58]
‘
Reasonableness’ finds no
application
in casu
.
I have already alluded to the test to be applied in an application
such as this one
supra.
[59]
In
NUMSA
obo Zahela and Three Others v Volkswagen SA (Pty) Ltd and Others
(Zahela)
[15]
an application for review was dismissed where the applicant
incorrectly relied on ‘reasonableness’ instead of
‘correctness’
and it was held that:
‘
In
other words, reasonableness ordinarily has no place in a review where
the enquiry is whether or not the CCMA had jurisdiction.
This is an
assessment that must be made objectively, having regard to the facts
placed before the commissioner. It amounts to a
determination of
whether the commissioner’s decision was correct.
It follows that in a
matter such as the present, where the proper right of review is one
based on correctness that is the case that
must necessarily be
pleaded. The applicant, mistakenly, has pleaded on the basis of an
attack on the reasonableness of the arbitrator’s
decision. Mr
Niehaus, who appeared for the applicant, did not dispute that the
applicant had sought intervention on a basis that
was incorrect. He
requested the court to postpone the matter and to grant the applicant
leave to file amended papers in order to
address the error.
There are a number of
considerations that compelled me to conclude that a postponement and
the concomitant further delay in the
resolution of these proceedings
was not appropriate in the circumstances. First, as I have indicated,
the fact of the matter is
that the applicant has approached this
court on the basis of pleadings that posit the incorrect test. All of
the submissions in
the founding papers, to the extent that they
suggest that the arbitrator failed to appreciate the nature of the
enquiry that she
was to conduct and that her decision fell outside of
the band of decisions to which reasonable people could come on the
available
material, are irrelevant. The applicant would be obliged to
make out an entirely new case for review. The present situation is
not dissimilar to that where a plaintiff elects the wrong cause of
action to pursue his or her claim. It is not open to a
plaintiff, generally speaking, in those circumstances simply to seek
to remove the matter from the trial roll and introduce a new
cause of
action.’
[60]
This
Court has followed the
dicta
in
Zahela
[16]
in
SA
Post Office SOC Ltd v CCMA and Others
[17]
and I see no reason not to follow same in this instance.
[61]
The application before me is interspersed
with allegations relating to reasonableness and the grounds for
review are clearly seeking
a review of the arbitration award because
it falls short of ‘reasonableness’. All those allegations
are irrelevant
as the test to be applied is correctness.
[62]
It is trite that an applicant’s case
should be made out in the founding affidavit and in a review, that
case can be supplemented
in a supplementary affidavit.
In
casu,
the case made out is for the
review of an arbitration award on the basis that it is unreasonable.
This application was based firmly
on the reasonableness test and it
admits no scope for a correctness argument. In fact, there is not a
single averment made to support
a case on the basis that the
arbitrator was incorrect.
[63]
I re-iterate: reasonableness has no place
in a review such as this one and the grounds for review relating to
reasonableness cannot
be considered. The Applicant has failed to make
allegations to sustain this application as he clearly approached this
Court on
the basis of an incorrect test. This is fatal to the
Applicant’s case and on this ground alone the application
should be
dismissed.
Costs
[64]
This Court has a wide discretion in making
a cost order, considering the requirements of law and fairness.
[65]
This Court is ordinarily reluctant to make
orders for costs against individuals, for whom the prospect of an
adverse costs order
may serve to inhibit the exercise of what they
perceive as their rights. This is not an immutable rule.
[66]
This is a matter where a cost order would
be warranted, however I am alive to the fact that the Applicant
represented himself in
this matter. A cost order may burden him
beyond what he may be able to bear.
[67]
In my view, the interest of justice will be
best served by making no order as to costs.
[68]
In the premises I make the following order:
Order
1.
The application for review is dismissed;
2.
There is no order as to cost.
______________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Representatives:
Applicant:
In person
Third
Respondent:
Solomon Holmes Attorneys
[1]
Act
66 of 1995, as amended.
[2]
[2012]
2 BLLR 164 (LAC).
[3]
CUSA
v Tao Ying Metal Industries and Others
(2008) 29 ILJ 2461 (CC) at par 67 and 68.
[4]
(2010)
31
ILJ
713 (LC)
at
para
27
.
[5]
S
A Rugby Players Association and others v S A Rugby (Pty) Ltd and
others
(2008)
29 ILJ 2218 (LAC) at para 44.
[6]
(2013)
34 ILJ 1427 (LAC) at para 24.
[7]
(2007)
28 ILJ 2405 (CC) at paras 78 and 79.
[8]
SA
Rugby (Pty) Ltd v SA Rugby Player’s Association and Another
(2008) 29 ILJ 2218 (LAC),
MEC
Department of Health Eastern Cape v Odendaal and Others
(2009) 30 ILJ 2093 (LC),
Asara
Wine Estate and Hotel (Pty) Ltd v Van Rooyen and Others
(2012) 33 ILJ 363 (LC),
Majatladi
v Metropolitan Health Risk Management and Others
(2013) 34 ILJ 3828 (LC).
[9]
SA
Rugby (Pty) Ltd v SA Rugby Player’s Association and Another
(2008) 29 ILJ 2218 (LAC) at para 41.
[10]
Trio
Glass t/a The Glass Group v Molapo NO and others
(2013)
34 ILJ 2662 (LC) at para 22,
Kukard
v GKD Delkor (Pty) Ltd
(2015)
36 ILJ 640 (LAC) at par 12 footnote 2,
Pecton
Outsourcing Solutions CC v Pillemer NO and others
(2016)
37 ILJ 693 (LC) at para 16.
[11]
Supra
n 7.
[12]
2014
(11) BCLR 1310 (CC).
[13]
(2019)
40 ILJ 613 (LC).
[14]
See
for example
Sappi
Kraft (Pty) Ltd t/a Tugela Mill v Majake NO and Others
(1998) 19 ILJ 1240 (LC) at para 48;
SMCWU
v Party Design CC
[2001] 6 BLLR 667
(LC) at para 12;
[15]
Unreported
case number PR 137/13, handed down on 16 November 2016.
[16]
Ibid
[17]
(2018)
39 ILJ 1350 (LC).