THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
NOT REPORTABLE
Case No: JR849/21
In the matter between:
GOVERNMENT PRINTING WORKS Applicant
and
GENERAL PUBLIC SERVICE First Respondent
SECTOR BARGAINING COUNCIL
COMMISSIONER KEKANA NO Second Respondent
PUBLIC SERVANTS ASSOCIATION Third Respondent
OBO LEBOMBO AND 27 OTHERS
Heard: 24 March 2025
Delivered: 25 March 2025
Summary : Application to review and set aside the arbitration award issued by
the second respondent. Application for review is successful. Award replaced
with a finding that the members of the third respondent were not dismissed.
JUDGMENT
2
DANIELS J
Introduction
[1] This is application is brought to review and set aside an arbitration
award, dated 10 March 2021, issued by second respondent ( hereafter the
“commissioner”) under reference GPBC805/2020. The commissioner found that
twenty -eight members of the third respondent had been unfairly dismissed, by
the applicant, and they must be reinstated into its with two months of backpay.
Condonation
[2] At the start of the hearing, the applicant moved an application for
condonation. The review application was filed one week late, a short delay. The delay was fully explained by the applicant in its founding affidavit. Various
technical and administrative difficulties conspired to prevent the applicant from filing its application in good time, although the application itself had been prepared before the expiry of the prescribed period. The applicant experienced
unexpected difficulties with getting the review application signed, and securing
the necessary case number. A detailed explanation of these delays was provided. There was no prejudice, or significant prejudice, to the third
respondent. The applicant set out reasons why it has reasonable prospects of
success which were adequate in the circumstances . Having weighed all the
relevant factors which are appropriate to condonation , I believed that it was in
the interests of justice to grant condonation and I therefore did so.
Material facts
[3] The facts of the matter are common cause:
3.1 The twenty -eight employees, all members of the third respondent ;
the Public Servants Association (hereafter “PSA”) were engaged as
3
cleaners , by the applicant , on a fixed term contract s for the following
periods:
(1) 8 July 2019 to 31 December 2019 (a period of more than
five months but less than six months);
(2) 1 January 2020 to 30 April 2020 (a period of four months);
(3) 14 May 2020 to 31 July 2020 (a period of approximately two and
half months).1
3.2 Prior to their engagement, the members (hereafter , for ease of
reference, “the cleaners”) were employed by a contractor named
Supercare and placed at the applicant. Prior to this, the cleaners had
been employed by other cleaning contractors - though still placed at the
applicant . This occurred over several years.
3.3 By mid-2019, the contract between the applicant (hereafter
“GPW”) and Supercare was in its final stages . The GPW was negotiating
the terms of a new cleaning contract, with the successful contractor ,
following the tender process . However, the negotiations collapsed shortly
before the end of the Supercare contract .
3.4 Anxious to avoid any period without cleaning services, the GPW
approached the cleaners and offered them fixed term employment. The
cleaners accepted the offer and were handed letters of appointment
stipulating , inter alia, their salaries and job title. The letters stated that
their employment would be for a fixed term, to expire on 31 December 2019. The letter stated: “ Your appointment is subject to the provisions of
the Public Service Act, 1994 as amended; the regulations issued in terms thereof, the Human Resource Circular issued from time to time as well as the Labour Relations Act, 1995.” These appointments occurred with no
prior interviews, or screening, being conducted.
1 Accordingly, by the end of July 2020, the cleaners had worked for the applicant for only two
and half consecutive months .
4
3.5 At the end of 2019, the employment contracts were extended to
30 April 2020.
3.6 On or about 11 May, the applicant handed the cleaners a letter
advising them that their employment would continue until 31 July. The
final sentence of the letter stated: “ Please note that the extension of your
fixed term employment contract does not mean or should raise any
expectation of a permanent employment at the end of the extended
contract .”
3.7 On or about 8 July 2020, the applicant handed the cleaners a
further letter advising each of them that their “… employment contract will
expire on 31 July 2020 and the Government Printing Works will not extend it .” At the end of July, the GPW did not extend the cleaners’
contracts.
3.8 The GPW advertised the vacant posts internally and externally. All
the cleaners applied for the posts but none were short listed, and none were appointed.
3.9 The cleaners, unhappy that their contracts had not been renewed
or their employment made permanent, referred a dispute concerning the issue to the first respondent (hereafter the “Council ,” the “Bargaining
Council” or “GPSSBC”). This resulted in the arbitration award which is the subject of this review application.
Arbitration proceedings
[4] At arbitration, the PSA called two witnesses, Mr John Pule Mojanaga
(hereafter “Mojanaga”) and Ms Constance Seleka (hereafter "Seleka”). Mojanaga was an employee of the GPW, a shop steward of the PSA and its chairperson for many years. Seleka was a cleaner and one of the individual applicants at the arbitration.
5
[5] Mojanaga testified that :
5.1 There was an “ in principle ” agreement (the “agreement”) reached
with GPW to the effect that the cleaning service would be insourced and
the cleaners employed on a permanent basis. Initially, his evidence
appeared to suggest that the agreement was reached with the former Acting Chief Executive Officer, Ms Josphine Meyer (hereafter “Meyer”).
2
However, when the commissioner sought to clarify the nature of the agreement,
3 Mojanaga testified that the agreement was reached, after
the departure of Meyer, at the Departmental Chamber of the GPSSBC
(the “Chamber”) . Mojanaga never explained when the agreement was
reached.
5.2 Initially, Mojanaga stated that the agreement was that the cleaners
would be “ absorbed” after they had been screened.
5.3 However, short ly thereafter , Mojanaga testified that the agreement
was that the vacant cleaning positions would be advertised internally and
then stated: “it was in one way or other to absorb them …”
4 He clarified
that the effect of advertising the posts internally was that the cleaners
would be the only individuals to apply for the vacant posts, and they
would compete for eighteen positions among themselves.
5.4 Mojanaga testified that there was a long history of the GPW failing
to follow its own recruitment processes . GPW did so to comply with a n
informal agreement, allegedly reached with PSA during 2012, that use of
casual workers would be reduced and GPW would try to “absorb” such
workers as permanent employees.
5 Mojanaga claimed that the reason
2 Transcript p261 (lines 10 – 25) and p265 (lines 1 – 5); note that his evidence also reflected
that, by the time of the meeting on 15 August 2019, Meyer had departed from the applicant’s
employ .
3 Transcript p298 lines 11 – 31
4 Transcript p298 line 28 – p299 line 6
5 Transcript p264 lines 10 – 17
6
why the cleaners had been engaged on fixed term contracts had nothing
to do with the expiry of the Supercare contract, and the collapse of negotiations with the new contractor, but it related to the GPW’s wish to comply with the 2012 agreement.
[6] Seleka testified that :
6.1 The cleaners hoped they would be permanently appointed
because they worked well, there were no complaints about their work,
and they continued to work during the COVID19 lockdown.
6 Additionally,
Seleka testified : “…even when we go to the corridors you can hear
people saying no don’t worry, you’ll get the job, even us we were there,
then they give us the job.”7
6.2 When questioned about a meeting held between the cleaners and
Ms Michelle Modise (hereafter “Modise”) the General Manager: Human
Resources, she testified that Modise said that “hopefully” they would be
appointed because of their many years of experience with GPW and the
cleaners would likely be preferred over someone from Shoprite.
8
6.3 Accordingly, Seleka did not confirm the existence of any
agreement that the cleaners would be permanently employed.
[7] The applicant called two witnesses, Mr Jan Rossouw (hereafter
“Rossouw”) and Modise. Rossouw was the Director: Human Resources and
Modise, as previously mentioned, was the General Manager: Human
Resources.
[8] Rossouw testified that :
6 Transcript p307 lines 1 – 34
7 Transcript p308 lines 7 – 17
8 Transcript p314 line 23 - p315 line 7
7
8.1 The cleaners were engaged on fixed term contracts without prior
interviews because there was an emergency resulting from the collapse
of negotiations with the new cleaning contractor . He testified that it was
not the norm, but there were exceptions to the rule that interviews must
be held before any appointment . He testified that, at the time of the
cleaners ’ initial engagement, their posts were not included on the post
establishment. However, by late 2019, the applicant had been authoris ed
to include such positions on the establishment.9 GPW commenced the
recruitment process by only advertising internally.
8.2 Following a complaint from NEHAWU, a letter received from the
Minister of Home Affairs, and an instruction from the Public Service
Commission, GPW decided to advertise the posts internally and
externally. The complaint alleged that there was some form of collusion, between the Human Resources Department and the PSA , to ensure that
the cleaners were appointed.
10
8.3 Meyer could not have concluded an agreement with PSA in his
absence, as he was the custodian of the Human Resources policies. He had no knowledge of any agreement with the PSA relating to the
cleaners .
8.4 The extension, or extensions, of the contracts of the cleaners
occurred because of the difficulties with COVID19 and challenges in the recruitment processes.
11
[9] When Modise testified:
9.1 She gave a full explanation of her meeting with the cleaners,
during which she advised the cleaners that the vacant posts would no
longer only be advertised internally ; but would be advertised internally
9 Transcript p324 lines 33 - 34
10 Transcript p322 lines 27 - 30
11 Transcript p329 lines 18 – 23
8
and externally.12 Modise testified that she had encouraged the cleaners
to apply for the posts and assured them that the reason for advertising
externally was unrelated to them and they still had a good chance of
being appointed.
9.2 Modise stressed that she never promised the cleaners that they
would be appointed.
9.3 Modise stated that there was an agreement between the PSA and
the GPW, reached at the Chamber. The agreement was that the vacant posts would be advertised internally.
13 Modise stated that Meyer could
not have reached any agreement that the cleaners would be permanently employed.
14
9.4 Importantly, Modise testified :
“I did not create any expectation because throughout this, the cleaners
were made aware and if I had created an expectation, why would I create
an expectation and then from there go and advertise the position. My
going through the …following the prescribed DPSA recruitment process,
it’s a clear indication that there was no intention to just place a person
without following the recruitment process and as such there was no
expectations, which is also even in writing, in the documents that I signed and gave to them as an offer of employment .”
15 (own emphasis)
[10] The witnesses referred to the documents in their evidence. Some of the
more important documents are referenced below:
12 Transcript p344 lines 21 – 34
13 Transcript p352 lines 6 – 13
14 Transcript p347 lines 20 – 34
15 Transcript p351 lines 18 – 24
9
10.1 Section 57(2) of the Public Service Regulations (the
“Regulations”) permits the employment of individuals additional to the
establishment in a limited number of instances.
10.2 Section 57(4) of the Regulations prohibits the employment of any
individual “additional to the establishment ” for more than twelve
consecutive months .
10.3 Section 65 of the Regulations requires that vacant posts must be
advertised, within the affected department, but they may also be
advertised in the public service, locally or nationwide. 10.4 The minutes of the Chamber form ed part of the record in respect
of the meetings held on 15 August 2019, 5 December 2019, 14 January
2020, 27 July 2020, and 12 August 2020. In this regard:
10.4.1 None of the minutes referred to any agreement, in principle or
otherwise.
10.4.2 On 5 December 2019, the GPW advised the PSA that it could not
continue extending the contracts of the cleaners because this was not in accordance with its own processes. Importantly, the GPW informed the PSA that : “…the process of insourcing did not mean that the cleaners
would be automatically absorbed.” In reply, PSA did not allege that any
agreement existed.
10.4.3 On 27 July 2020, the GPW explained the process relating to the
cleaners in full. It explained that the posts had to be advertised externally , as well as internally , and the reasons for that. The PSA
argued that a reasonable expectation of further employment had been created, but it identified only one reason for the expectation – that the
contracts had been renewed several times. Once again, no agreement was alleged.
10
Legal principles
Review applications [11] The arbitration process and the resulting arbitration award both constitute
administrative action. Accordingly, section 33(1) of the Constitution requires that the process and the outcome must be lawful, reasonable, and procedurally fair.
It was in this context that the Constitutional Court fashioned the appropriate review test
16 in relation to CCMA arbitration awards in the following terms: is the
arbitration award one which no reasonable commissioner could reach on the material before him or her ? The test has come to be known as the “ Sidumo test”
or the “reasonableness test .”
[12] Subsequently , in CUSA v Tao Ying Metal Industries and Others
17 (“Tao
Ying”) the Court held at para 76:
“76] It is by now axiomatic that a commissioner is required to apply his or
her mind to the issues properly before him or her. Failure to do so may
result in the ensuing award being reviewed and set aside. Recently,
in Sidumo, the matter was put thus:
“Parties to the CCMA arbitrations have a right to have their cases fully
and fairly determined. Fairness in the conduct of the proceedings
requires a commissioner to apply his or her mind to the issues that are
material to the determination of the dispute. One of the duties of a
commissioner in conducting an arbitration is to determine the material
facts and then to apply the provisions of the LRA to those facts in
answering the question whether the dismissal was for a fair reason. In
my judgment, where a commissioner fails to apply his or her mind to a
matter which is material to the determination of the fairness of the
sanction, it can hardly be said that there was a fair trial of issues .” (own
emphasis)
16 Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405 (CC)
17 (2008) 29 ILJ 2461 (CC) (18 September 2008)
11
[13] Thus , following Tao Ying, it is clear that the decision maker must apply
his or her mind to all the issues that are material to a fair determination of the
dispute. The failure of the commissioner to apply his or her mind to the material
issues denies the parties a fair trial and, invariably, the outcome will be
unreasonable.
[14] In Herholdt v Nedbank Ltd (COSATU as Amicus Curiae)18 the court
clarified that the Sidumo test did not extinguish the procedural grounds for
reviews contemplated in section 145(2) (a) of the LRA. However, the procedural
defects alleged must indicate that the arbitrator misconceived the nature of the
enquiry, or arrived at an unreasonable result.
[15] In Bestel v Astral Operations Ltd & others
19 the court considered the
narrow scope of review and accepted that an arbitrator’s finding would be
unreasonable if it is unsupported by any evidence, based on speculation,
disconnected from the evidence, supported only by evidence that is
insufficiently to justify the decision, or if it was made in ignorance of evidence
that was uncontradicted. The Court held that:
‘… the ultimate principle upon which a review is based is justification for
the decision as opposed to it being considered to be correct by the reviewing court; that is whatever this Court might consider to be a better
decision is irrelevant to review proceedings as opposed to an appeal .
Thus, great care must be taken to ensure that this distinction, however difficult it is to always maintain, is respected.’ (Own emphasis)
[16] In Goldfields Mining SA (Pty) Ltd v CCMA and others
20 the court held
that the concept of reasonableness embraces a wide range of outcomes, many of which may be reasonable. The outcome should not be evaluated on a piecemeal basis, but on the totality of the evidence.
18 (2013) 34 ILJ 2795 (SCA)
19 [2011] 2 BLLR 129 (LAC) at para 18
20 (2014) 35 ILJ 943 (LAC) at para 14
12
[17] In Head of the Department of Education v Mofokeng and others21 the
court confirmed that where an arbitrator fail s to apply his or her mind to the
material issues, this will usually indicate that the outcome is unreasonable or
that the arbitrator misconceived the nature of the enquiry. However, when a
mistake of fact or law occurs, what matters is its materiality - whether the error
had a distorting effect on the outcome.
Analysis of the grounds of review
[18] The dismissal dispute related primarily to two provisions of the Labour
Relations Act No. 66 of 1995 as amended (hereafter “the LRA”):
18.1 Section 186(1)(b) which includes in the definition of “dismissal”
instances where:
“an 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) 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.” (own emphasis)
18.2 Section 198B(3) , which prohibits the employment of an employee
on a fixed term contract, or successive fixed term contracts, for longer than three months of employment save for thos e exceptions identified in
subsections (a) and (b). In general, employees may only be engaged on
fixed term contracts for longer than three months where the nature of the
21 [2015] 1 BLLR 50 (LAC)
13
work is of a limited duration or there is some other justifiable reason. If
the work is not of a limited duration, or there is no justifiable reason, the employment is deemed to be of an indefinite duration.
[19] Where employees allege that they have been dismissed in terms of
section 186(1)(b) of the LRA , as in this matter, the onus lies on them to prove
the existence of the reasonable expectation , by reference to evidence justify ing
that expectation.
22 The evidence could be proof of previous regular renewals of
the employment contract, provisions of the employment contract, assurances or
promises that the employment contract would be renewed, the reasons why the
employment contract was concluded on a fixed term basis, failure to give
reasonable notice of non- renewal of the employment contract, the nature of the
business, etcetera. This is not a closed list. In order to discharge the onus, the
employees must prove the facts that, objectively considered, establish a
reasonable expectation. 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
23 or appoint him or her on an indefinite
basis.
[20] The provisions of section 186(1)(b) and 198B of the LRA ought not to be
conflated
24 given that they relat e to discrete issues with different consequences .
Our courts have suggested that the better place for the arbitrator to begin is to
determine whether a reasonable expectation exists in terms of section 186(1)(b).
[21] In my view, in this matter, the arbitration award was based entirely on
irrelevant considerations. Among other things:
22 Joseph v University of Limpopo & others (2011) 32 ILJ 2085 (LAC)
23 SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others (2008) 29 ILJ 2218
(LAC)
24 Stellenbosch Municipality v SA Local Government Bargaining Council & others (2023) 44 ILJ
388 (LC)
14
21.1 The commissioner considered it relevant that interviews were not
always held, by the GPW, in the past ;
21.2 The commissioner considered it relevant that the cleaners were
not given full employment contracts but only given letters of appointment ;
21.3 The commissioner believed that the real reason the employment
of the cleaners was “terminated” was because NEHAWU had lodged a
complaint with the Public Service Commission .
[22] The commissioner found, in paragraph 57 of the award, that the
applicant contravened section 198B(3). However, he failed to consider section 198B(2)(c) which provides that section 198B is not applicable where an
employee is employed in terms of a fixed term contract permitted by statute, sectoral determination, or collective agreement. In this dispute, t he Regulations
permit ted the employment of public servants on fixed term contracts for periods
up to twelve consecutive months. S ection 198B was therefore not applicable,
and should therefore have played no role in the outcome. Clearly, this error of
law had a material distorting effect on the outcome.
[23] The applicant contends the commissioner failed to take into
consideration that the reasons for the extension (or extensions) of the fixed term contracts were fully and reasonably explained.
25 I accept these submissions
too. This was a further misdirection.
[24] The applicant argued that the commissioner failed to consider that the
minutes of the Chamber reflect that there was no agreement to engage the
services of the cleaners on a permanent basis. The third respondent alleged
that an agreement had been reached at the Chamber. Such agreement should
have appeared from the minutes , but did not . The commissioner failed to
consider the minutes - despite the fact that such evidence was highly relevant .
25 At arbitration, the applicant had alleged that there was a single extension from 31 December
2019 until 30 April 2020. While I place no emphasis on this, I presume this was because of the
apparent break in employment between 30 April and 11 May 2020.
15
In fact, e ven the agreement which Modise conceded existed (namely that the
vacant posts would be advertised internally) do not appear from the minutes .
Despite this, t he third respondent did not allege that the minutes were
inaccurate or incomplete. The failure to consider this relevant consideration is a
further indication that the commissioner failed to apply his mind to the issues .
[25] The applicant submitted that the commissioner failed to take into
consideration that: (1) the offer of employment , from the GPW, dated 11 May
stated that the employment offer (which extended until 31 July ) should not raise
any expectation of permanent employment ; and (2) the letter from the GPW ,
dated 8 July , advised the cleaners that their contracts would expire at the end of
July 2020 and would not be extended. Indeed these considerations did not
feature in his reasoning. Though the terms of the employment contracts, or letters of appointment, are not considered conclusive proof of whether an
expectation exists, or not, such documents remain relevant .
[26] The applicant submitted that the evidence presented by the third
respondent was unclear on the nature of the promise (or agreement) allegedly
made by the GPW , or the identity of the individual who had made such
promises. I accept this submission without hesitation. The transcript reveals that
the evidence of the “agreement” or “promise” was entirely unsatisfactory. The
commissioner was justifiably confused about the true nature of the promise, or
agreement . It was clear from the evidence that no promise of permanent
employment was made by Modise. According to Mojanaga the promise, or
agreement, of permanent employment, was made at the Chamber yet he could
not identify when it was made, who concluded the agreement , nor did he
explain why there was no record of it in the minutes. At most, there might have
been an informal agreement to advertise the posts internally, which could have
led to the permanent appointment of some of the cleaners.
[27] The third respondent conceded that, in reaching his conclusion, the
commissioner did not rely on any alleged promise or agreement . Paragraph
45.1 of its answering affidavit makes this clear . I accept this submission. In the
16
absence of any promise or agreement, the case of the third respondent was
hardly compelling.
[28] When stripped of the irrelevant considerations, the outcome is hard to
comprehend. The commissioner finds that there was a reasonable expectation
of permanent employment but there is no credible basis for his conclusion.
[29] The totality of the evidence pointed in one direction alone. The third
respondent accepted that the permanent appointees would be subjected to
screening and prior interviews. The applicant warned the third respondent at the
Chamber meetings that insourcing did not mean the automatic appointment of
the cleaners. There was no compelling evidence of any promise or agreement.
The cleaners hoped to be permanently appointed, but that does not constitute a
reasonable expectation. The fact that there were three fixed term contracts over a twelve -month period is, by itself, insufficient. The reasons for that were fully
explained. The presence, or absence, of interviews before the first
appointments (of the cleaners) were adequately explained - even if one
assumes it is relevant .
[30] In my view, little purpose would be served in referring the dispute back to
the first respondent, given that the record is complete. It would not serve one of the primary functions of the LRA - the expeditious resolution of employment
disputes . The third respondent failed to discharge the onus of proving that its
members held a reasonable expectation of renewal of their fixed term contracts,
or a reasonable expectation that they would be permanently appointed.
[31] In the result, the review application must succeed.
Costs
[32] Costs in labour disputes do not follow as a matter of course. The third
respondent was entitled to defend its victory at arbitration and did so to the best of its ability. I see no reason to mulct it in costs .
17
Conclusion
[33] In the circumstances, for the reasons set out above, I make the following
order:
33.1 The arbitration award issued by the second respondent , under
reference GPBC805/2020, is reviewed and set aside,
33.2 The arbitration award is replaced by an order that third respondent’s
members ’ failed to discharge the onus in terms with section
186(1)(b) ; and section 198B is not applicable to the dispute,
33.3 There is no order as to costs.
Reynaud Daniels
Judge of the Labour Court of South Africa
Appearances :
For the Applicant :
Adv Mokawala
State Attorney For the Third Respondent :
Adv Maponya L Khumalo Attorneys