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[2020] ZALCJHB 263
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Naidoo v Nsibanyoni NO and Others (JR54/18) [2020] ZALCJHB 263 (29 June 2020)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR54/18
In
the matter between:
THRU
NAIDOO Applicant
and
T
NSIBANYONI
N.O. First
Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION Second
Respondent
NATIONAL
HOME BUILDERS REGISTRATION
COUNCIL Third
Respondent
Date
heard:
10 March 2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties' legal representatives by email, publication on the Labour
Court’s website and released to SAFLII. The date and time for
hand- down is deemed to be 10h00 on 29 June 2020.
Summary:
Review
of arbitration award; whether the applicant had a reasonable
expectation of renewal of contract; representation inducing
reliance
must be lawful and competent;
Hauptfleisch v Caledon Divisional
Council
1963 (4) SA 53
(C) at 59E-G as cited in
Zungu v
Premier, Province of Kwazulu-Natal and Another
(2017) 38 ILJ 1644
(LAC) followed.
JUDGMENT
RABKIN-NAICKER,
J
[1] This
is an opposed application to review and set aside an arbitration
award under case number GAJB13644-17.
The first respondent
(Commissioner) found that the applicant failed to prove that she had
a reasonable expectation that her contract
of employment would be
renewed. There is also an opposed condonation application for the
late filing of the answering affidavit.
The third respondent tendered
the costs of that application. I have decided to exercise my
discretion to grant condonation and
deal with the merits of the
review below.
[2]
The
applicant was employed by the fourth respondent (the employer), a
regulatory body in the home building industry. The employer
is a
Schedule 3 Public Entity to which the Public Finance Management
Act
[1]
(PFMA) applies. The
applicant was the Head of Human Capital and was on a five year fixed
term contract, commencing in February
2012 and to end in February
2017. On 20 February 2017, the applicant was issued with a second
contract that ended on 30 April 2017.
A further extension was given
until 31 May 2017.
[3] The
position of Human Capital position had been advertised towards the
end of 2016 and the applicant applied
for the position with other
external applicants. She was shortlisted and interviewed but was not
appointed to the position.
[4] It
is submitted that the Award is reviewable because the Commissioner
failed to take account of material evidence
and to apply her mind to
the evidence before her, placing undue weight on the employer’s
evidence and no or adequate weight
on the applicant’s evidence
and her conduct raised a reasonable apprehension of bias. It is also
submitted that she misconstrued
the nature of the enquiry when she
stated that the Commission could not condone the applicant’s
disregard of the employer’s
recruitment policy.
[5] I
deal first with the material evidence as tendered by the applicant,
and which is alleged to have not been
taken into account by the
Commissioner, i.e. that:
5.1. She
was given undertakings by the CEO of the employer as well as three
other members of management that
she would get the position;
5.2. The
position of Human Capital Manager was advertised less than three
months prior to the expiry of her fixed
term contract;
5.3. She
had been granted leave during her notice period, contrary to the
employer’s policy and her
employment contract;
5.4 Her
employment contract for the period 20 February 2017 – 30 April
2017 reflected a substantial
salary increase;
5.5 Her
performance review took place on 30 April 2017 and an individual
development contract was signed
for the period 1 April 2017 –
31 March 2018;
5.6 The
interview for the post of Human Capital was postponed twice; and
5.7 The
evidence reflected in the MANCO meeting minute of 21 November 2016
that the CEO undertook that
advertisements be placed quickly and that
all managers be re-appointed.
[6] The
Commissioner found that even if the evidence of the undertakings by
the CEO and others were to be believed:
“…
.the
Applicant is an HR executive with extensive experience of more than
20 years and is the custodian of the HR Policies (My emphasis),
it
was indeed her duty to remind her superiors that renewal of a
contract without following proper procedures was in contravention
of
the Respondent Policy.”
[7] In
the Award, the Commissioner continues in the vein quoted above, as
follows:
“
73. In
fact it was the Applicant’s testimony that she was told that
she must just go through the “motions”
which is a dire
contravention of the Respondent’s Policy, which the Applicant
is a custodian thereof.
74. Proper
procedures were indeed followed and the Applicant was not successful
in her Application for the
position and it was at all times in the
knowledge of the Applicant that the Respondent was to contravene the
policy to appoint
her because she was supposed to go “through
the motions”.
75. The
Applicant can therefore not expect the Commission to condone the
contravention of the Policy of the
Respondent.
76. It
is therefore my conclusion that the Respondent followed proper
procedure in terms of its Recruitment
and Selection. For the mere
fact that the Applicant subjected herself to an interview,
objectively suggest that she was aware that
there was no lawful or
reasonable expectation that her contract was to be renewed.”
[8] The
above statements actually reflect a key legal question at issue in
the dispute before the Commissioner.
On the applicant’s own
version, it was represented to her that the selection and recruitment
process were to be a facade,
despite the advertising of the position
to external applicants. Her case was premised on reliance on such
representations.
[9]
In
Zungu v
Premier, Province of Kwazulu-Natal and Another
[2]
,
the LAC in dealing with a matter concerning the reasonable
expectation of renewal of a fixed term contract, referred to the
judgment
of
National
Director of Public Prosecutions v Phillips and Others
2002 (4) SA 60
(W)
as
follows:
‘
[27] A legitimate
expectation “arises where a person responsible for taking a
decision has induced in someone who may be affected
by the decision,
a reasonable expectation that he will receive or attain a benefit or
that he will be granted a hearing before
the decision is taken”.
De Smith, Woolf and Jowell Judicial Review of Administrative Action
5th ed at 417, para 8-037.
Such an expectation may
arise, “either from an express promise given on or behalf of a
public authority or from the existence
of a regular practice which
the claimants can reasonably expect to continue”.
Council of
Civil Service Unions v Minister for Civil Service
[1985] AC 374
(HL) ([1984]
3 All ER 935)
at 401B- C;
Administrator, Transvaal,
and Others v Traub, and Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A) at 756I;
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
2000 (1) SA 1
(CC)
(1999
(10) BCLR 1059)
in para [212].[28] The law does not protect every
expectation but only those which are “legitimate”. The
requirements
for legitimacy of the expectation, include the
following:
(i) The
representation underlying the expectation must be “clear,
unambiguous and devoid
of relevant qualification”: De Smith,
Woolf and Jowell (op cit at 425 para 8-055). The requirement is a
sensible one. It
accords with the principle of fairness in public
administration, fairness both to the administration and the subject.
It protects
public officials against the risk that their unwitting
ambiguous statements may create legitimate expectations. It is also
not
unfair to those who choose to rely on such statements. It is
always open to them to seek clarification before they do so, failing
which they act at their peril.
(ii) The
expectation must be reasonable:
Administrator, Transvaal v Traub
(supra at 756I-757B); De Smith, Woolf and Jowell (supra at 417
para 8- 037).
(iii) The
representation must have been induced by the decision-maker:
De
Smith, Woolf and Jowell
(op cit at 422 para 8-050);
Attorney-General of Hong Kong v Ng Yuen Shiu
[1983] UKPC 2
;
[1983] 2 All ER
346
(PC) at 350h-j.
(iv)
The
representation must be one which it was competent and lawful for
the decision-maker to make without which the reliance cannot be
legitimate:
Hauptfleisch v Caledon Divisional Council
1963 (4) SA 53
(C)
at 59E-G.’”
(My
emphasis)
[10]
A
‘reasonable’ expectation is used interchangeably with the
term ‘legitimate’ expectation in the jurisprudence
of the
Labour Courts
[3]
. The
requirement that the representations of the CEO and others had to be
competent and lawful in order to raise a reasonable expectation
on
the part of the applicant, applies
in
casu
.
[11]
It
is not necessary in these circumstances for the Court to decide on
the credibility of the respondent’s witnesses at the
arbitration, or the other procedural issues raised by the applicant
such as the refusal by the Commissioner to grant a postponement.
The
question whether the employer's failure to renew the fixed- term
contract of employment constitutes a dismissal within the
meaning of
s 186(1)(b) of the Labour Relations Act
[4]
(LRA) is a legal one. In other words, the commissioner hearing the
matter is called upon to determine the conclusion of law
[5]
.
The enquiry is concerned with both the subjective expectation of the
applicant and secondly, if she did have such an expectation,
whether
taking into account all the facts, that expectation was reasonable,
which is the objective element.
[6]
In the matter before me there could not be a reasonable expectation
on an objective basis because as a matter of law, the applicant’s
subjective views relied on incompetent and unlawful representations.
This on her own version. The Commissioner did not misconstrue
the
nature of the enquiry before her in dealing with the lawfulness of
the undertakings which the applicant claimed she had received.
[12] The
Commissioner was therefore correct in her conclusion that the
applicant had not met the onus of showing
that she had a reasonable
expectation of renewal of her fixed term contract and as a
consequence, a dismissal had not taken place.
The review application
therefore stands to be dismissed.
Costs
[13] On
the issue of costs, I grant these only in respect of the condonation
application. For the rest, each party
is to pay its own costs there
being no exceptional circumstances for costs to follow the result.
[14] In
the premises, I make the following order.
Order
1. The
application for condonation is granted with costs to be paid by the
third respondent.
2. The
review application is dismissed with no order as to costs.
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Representation:
For
the Applicant: Advocate
T. Govender
Instructed
by: J.
Chetty Attorney
For
the Third Respondent: Advocate
XD Matyolo
Instructed
by: Gildenhuys
Malatji Incorporated
[1]
Act 1 of 1999.
[2]
(2017) 38 ILJ 1644 (LAC).
[3]
See:
State
Information Technology Agency (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and Others
(2008)
29 ILJ 2234 (LAC) at para 8 in which the court referred to “
any
legitimate
expectation
or reasonable expectation as the phrase is employed in s 186(1)(b)”
[4]
Act 66 of 1995 as amended.
[5]
See:
De
Milander v Member of the Executive Council for the Department of
Finance: Eastern Cape and Others
(2013)
34 ILJ 1427 (LAC) at para 35.
[6]
See:
University
of Cape Town v Auf der Heyde
(2001)
22 ILJ 2647 (LAC)