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[2025] ZALCJHB 215
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SAMWU obo Moloisane v City of Tshwane Local Municipality and Others (JR 850/2019) [2025] ZALCJHB 215; (2025) 46 ILJ 2174 (LC) (10 June 2025)
FLYNOTES:
LABOUR
– Dismissal –
Reinstatement
–
Reasonably
practicable – Volunteer community health worker jobs –
Employed on fixed term contracts – Refused
to sign
replacement fixed term contracts after previous ones had lapsed –
Reinstating workers as permanent employees
in positions tied to
fixed-term project not feasible – Fundamental alteration to
nature of employment – Decision
not to reinstate employees
was not unreasonable – Application dismissed – Labour
Relation Act 66 of 1995, s 193(2).
THE LABOUR COURT OF
SOUTH AFRICA
AT JOHANNESBURG
Of interest to other
judges/Not reportable
Case
No: JR 850/2019
In
the matter between:
SAMWU
obo MOLOISANE AND OTHERS
Applicant
and
CITY
OF TSHWANE LOCAL MUNICIPALITY
First Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT BARGAINING COUNCIL
Second
Respondent
TIMOTHY
BOYCE,
N.O.
Third
Respondent
Heard
:
30 August 2024
Delivered
:
10 June 2025
Summary:
(Rule 11 application to dismiss review
application – Application to reinstate review application –
Review application
– Arbitrator deciding to award compensation
instead of reinstatement – Decision not reviewable –
arbitrator’s
finding not untenable that reinstatement was not
reasonably practicable in the context of the lapsed fixed-term
contract entered
into under an EPWP project and subsequent unfair
dismissal of applicants who had become indefinitely employed, owing
to employees’
refusal failure to conclude new fixed term
contracts after their employment became indefinite – absence of
permanent appointments
available under pilot project an obstacle to
reinstatement)
JUDGMENT
LAGRANGE, J
Nature
of the application
[1]
This is an opposed application dismiss a review application which is
deemed withdrawn, a counter-application to reinstate it and,
if the
review application is revived, an application to condone the initial
late filing of the review and the review application
itself.
[2]
On 9 September 2021, Prinsloo J struck all the
matters off the roll, because the review application had been
launched late by the
applicant (‘the union’ or ‘SAMWU’)
without an application for condonation. Accordingly, neither the
review
application nor applications to dismiss it and reinstate it on
account of the review being deemed withdrawn were dealt with.
[3]
The various applications were re-enrolled on 31
July 2024, as the union had subsequently filed its condonation
application for the
late filing of the review. By agreement, an order
was made condoning the late filing of the review application and the
matter was
postponed until 30 August 2024, with the third respondent
(‘the municipality’) paying the union’s wasted
costs.
The hearing on 30 August was conducted virtually on Microsoft
Teams.
[4]
The award which the union seeks to set aside is
one in which the arbitrator found that the dismissal of 151 volunteer
community
health workers working at a pilot NHI site was
substantively and procedurally unfair because the employer did not
prove the reason
for the dismissals was a fair one and did not follow
a fair procedure. The individual applicant employees were each
awarded R 10,000
as compensation. The thrust of the applicants’
argument is that the arbitrator was compelled to have reinstated the
employees
in their former positions but as permanent employees.
Reinstatement application
[5]
After the municipality applied to dismiss the review application,
SAMWU has applied to reinstate the review application,
coupled with
an application to condone the late filing of the record. The review
application was already deemed withdrawn in terms
of clause 11.2.2
read with clause 11.2.3 of the Labour Court practice manual, on
account of being filed more than 60 days when
the municipality
launched its Rule 11 application.
[6]
For all intents and purposes the municipality’s earlier
application to dismiss the review application and the application
to
reinstate the application traverse the same issues. Arguably, an
application to dismiss a review application which is deemed
withdrawn
might appear to be a redundant exercise, though the respondent
remains potentially at risk of the applicant attempting
to bring the
application back to life at some indeterminate point in the future.
In any event, as the party at fault in allowing
the review to become
dormant is the party responsible for justifying why it should be
resurrected it is pragmatic to deal with
both applications by
considering if the application to reinstate the review application
should succeed.
[7]
The bargaining council lodged a record with the registrar of the
court on 20 May 2019 and SAMWU collected obtained a transcript
before
the end of the month. the 60-day period elapsed around 13 August
2019. On 17 July 2019, the union filed 19 pages of a transcript
under
cover of a Rule 7A(6) notice. Despite knowingly filing a woefully
inadequate record, the applicants’ attorneys filed
a Rule
7A(8)(b) notice on 5 August that the applicants stood by the founding
affidavit and called on the municipality to file its
answering
affidavit. According to the founding affidavit deposed to by a
candidate attorney in the reinstatement application this
was done
because the 60-day time limit was looming. I note that the candidate
attorney deposed to the affidavit on the basis that
he was authorised
to and that he was “
involved in this matter on behalf of the
Applicants”
, not on the basis that he had personal
knowledge of what he was deposing to. In truth his ‘affidavit’
does not contain
sworn evidence. There is a confirmatory affidavit
from Mr Moloto, which can only pertain to events from September 2020,
but no
confirmatory affidavit from an attorney at the firm. Mr Moloto
is a shop steward, who represented the individual applicants in the
arbitration hearing.
[8]
It was claimed it had become apparent, around the time the Rule
7A(8)(b) notice was drafted, to the applicants’
attorneys that
the transcript received did not correspond with the evidence in the
founding affidavit in the review application.
However, no
clarification was obtained from Mr Moloto before they decided to file
the Rule 7A(8)(b) notice. It was only in September
that he clarified
that the transcript filed related to the initial proceedings which
took place before another commissioner, Mr
Koekemoer, who had issued
an earlier jurisdictional ruling in the matter. The municipality
points out that even before Mr Moloto
came back into the picture the
attorneys must have known that the transcript received did not
correspond to the arbitration hearing,
because it ought to have been
obvious that it concerned an initial jurisdictional question
determined by a different arbitrator.
[9]
At no stage had the applicants requested an extension of time to file
the record from the municipality, nor from the court,
as they were
entitled to under clauses 11.2.3 or 11.2.4 of the Practice Manual. No
explanation is provided for not using this mechanism
which was
designed to deal with the problem of serving a record timeously.
[10]
The municipality filed an answering affidavit on 20 August 2019 in
which it raised a preliminary objection that the record
was
incomplete. At the same time, it pointed out that the union also
needed to obtain condonation for the late filing of the review
application. During August, the union advised the municipality that
it was liaising with the bargaining council to obtain the correct
transcript.
[11]
On 27 September 2019, the council filed its application to dismiss
the review application as the applicants had not filed
a replying
affidavit by 27 August 2019 addressing the municipality’s
in
limine
objection that no proper record had yet been filed by 14
August 2019 and accordingly the review application was deemed
withdrawn.
[12]
The correct audio record was uplifted from the Registrar on 8
November 2019 and the transcript was available for collection
on 4
March 2020, but allegedly Mr Moloto could only raise funds for
payment of the transcript on 11 June and it was final delivered
on 24
June 2020. Why it fell to him to raise money when SAMWU was acting on
behalf of the applicants and how and when he eventually
succeeded in
obtaining funds, remains a complete mystery. The applicants complain
that everything ground to a halt during the Covid-19
lockdown which
took effect at the end of March until May 2020. No details are
provided how this directly affected what needed to
be done to advance
the review. The filing of the correct transcript from the date the
record was uplifted by the applicants was
at least 130 days, so even
if the 60-day period only commenced on 8 November 2019, the review
would still have been deemed withdrawn
on that basis.
[13]
It is clear from the explanation provided that the process of filing
the correct record timeously was poorly managed
by the applicants’
attorneys. It is very surprising in a case involving so many
applicants that the only legal professional
at the attorneys’
firm person who purports to be able to explain what transpired was a
candidate attorney who cannot even
claim personal knowledge of all
the events, nor even that he was employed by the firm at all relevant
times. One would also have
expected at least one of the attorneys at
the firm to have been ‘involved’ and that they would have
immediately sought
an extension of time when it became apparent the
transcript was not the correct one, rather than attempting to get
around the 60-day
limit by the clumsy expedient of filing a record
that was clearly incorrect and compounding matters by prematurely
filing a Rule
7A(8)(b) notice. It is distressing to note that no
legal professional is identified as having been responsible for the
application,
or of having personal knowledge of what transpired.
Conducting a review application in the way it was might be somewhat
excusable
in the case of a layperson ignorant of the rules and the
Labour Court Practice Manual, but is not to be expected of legal
professionals.
It is true there is a confirmatory affidavit by Mr
Moloto, but he could only have had knowledge of his role in matters
since he
contacted the firm in September.
[14]
Nevertheless, the chain of events can largely be gleaned from the
rest of the documentary record and the facts confirmed
by the
municipality. What is absent is any explanation why there were no
communications between the attorneys and the applicants
between 20
May 2019 and some unspecified date in September that year when Mr
Moloto made contact with the attorneys, a period of
at least four
months. The failure to apply for an extension of time once it became
clear the transcript was the wrong one, is completely
unexplained. In
relation to the correct record, it is unclear why it took nearly two
weeks to deliver it once it had been obtained.
I accept that it was
not the applicants’ fault that the incorrect recording was
provided by the bargaining council, but even
when the correct audio
record was provided, it took more than twice as long as it should
have to file the transcript. Apart from
the vaguely described lack of
funds advanced as the reason why the transcript could not be
collected once it was available, there
was no explanation for the
period from 8 November 2019 until 4 March 2020 when the transcript
became available, bearing in mind
that preparation of the 56-page
transcript should not have taken long. As to the lack of fund, Mr
Moloto did not take the court
into his confidence as to how much was
required or why it only became available in June 2020.
[15]
It was only on 31 July 2020 that the applicants applied to reinstate
the review application and applied for condonation
for the late
filing of the record. It is important to mention that only the
transcript was filed. Documentation which was referred
to during the
argument at the arbitration hearing was not filed, though the content
of some of the documentation can be gleaned
from the undisputed oral
submissions made.
[16]
All factors considered, the periods of delay are significant and the
explanation for material periods of delay are either
absent
completely or in part, and where an explanation is proffered, it is
lacking in sufficient detail. Despite these serious
lapses and the
careless way in which the review has been prosecuted, I believe the
issues the award raises are important enough
to outweigh these
factors and warrant the review being considered. Accordingly, it will
be reinstated.
The condonation
application
[17]
The award was handed down on 12 March 2019. On 15
March 2019, and was sent to SAMWU.
[18]
Mr Moloto claimed he only received the emailed
award on 20 March and could only convey it to the other applicants on
23 March.
[19]
On the basis of the last-mentioned date the
application should have been filed by 4 May 2019, but in relation to
the date the award
was received at SAMWU’s office, the final
date for filing was 26 April. The review application was launched by
the union
on 29 April 2019 when it was served on the municipality,
but only filed with registrar on 2 May 2019, which is the date on
which
application is delivered in terms of the Labour Court Rules.
Based on these dates the review application was a few days late.
[20]
The union argued that the application was not late
because the six-week period should only have commenced when the
members, who
were also parties to the dispute, were notified.
Although SAMWU acts on behalf of the individual applicants in the
review application,
it was not a party in the arbitration
proceedings. However, Mr Moloto, who did represent them in the
arbitration, used SAMWU’s
address for the purposes of the
arbitration. Accordingly, that address was used when the award was
issued. Thus, the date of service
on Mr Moloto, and that of the
individual applicants, was 15 March 2019 when it was emailed to
SAMWU. The fact he only saw it later
and had to convey it to the
individual applicants are factors which might be relevant to the
explanation for the delay, not to
the date when the six-week period
commenced.
[21]
Having initially objected to the lack of a
condonation application, the municipalit withdrew its opposition to
condonation being
granted in the interest of finalising the matter.
Nevertheless, the court must still determine if condonation should be
granted.
[22]
In summary, the delay is slight and the
explanation not unreasonable. Consequently, it is not necessary to
delve into the prospects
of success as well. Accordingly, the late
filing of the review should be condoned.
[23]
The merits of the review application can now be
addressed.
The award
[24]
The parties conducted the arbitration on the basis
of a stated case, though there was not complete unanimity on every
point, as
evidenced by the transcript. Even so, none of those points
of factual contention ultimately have a bearing on the merits of the
award.
[25]
The arbitrator noted that the applicants had been
employed as volunteer community health workers in terms of a pilot
site for the
National Health Insurance (‘NHI’) scheme.
They were each employed on two consecutive fixed term contracts on
various
dates between Jan 2014 and 30 April 2016. The contracts were
renewable annually. They were not employed in terms of the
municipality’s
normal recruitment and staffing policy and were
not part of the staff establishment. They were paid R 2,500 per month
at the time
of termination.
[26]
Employees whose last fixed term contracts had
expired, continued working and received the same remuneration, but
without written
contracts until 31 December 2015. In January 2016
some of them received termination letters confirming their
termination of their
employment on 31 December 2015 as Ward Based
Outreach Team Community Health Care Workers. None of the applicants
were paid for
January 2017.
The arbitrator
found the last fixed term contracts expired at the end of December
2015, 31 January 2016, 31 March 2016 and 30 April
2016 respectively.
[27]
The disputed issues were whether they were
dismissed and, if so, whether their employment ended with the expiry
of the fixed term
contracts or when they refused to sign new
contracts.
[28]
In April 2016, employees whose contracts expired
in December 2015 and January 2016 were issued with fixed term
contracts for the
period 1 Feb 2016 to 31 Jan 2017, which they did
not accept on the union’s advice. It appears that all the
applicants were
asked to sign new fixed term contracts at some stage
before or after the expiry date of their last contract, but none did
and continued
working after that date.
[29]
In my view, the arbitrator rightly concluded that
when they continued to work after refusing to sign the new fixed term
contracts
they were remained employees in terms of the definition of
an employee in s 213 of the Labour Relations Act, 66 of 1995 (the
LRA’)
but were no longer employed on limited duration contracts
(LDC’s), but were employed
on an indefinite or
permanent
basis. Accordingly, their services could only be terminated by an act
of dismissal on the part of the employer, and not
by the effluxion of
time.
[30]
Even though it seems that some of the contracts
were only due to expire at the end of January, February and March
2016, the parties
agreed that all the applicants continued working
after their contracts expired and they all refused to agree to the
new fixed term
contracts they were offered in April, which would have
run from 1 January to 31 December 2016.
[31]
The arbitrator concluded that since none of the
applicants were paid after 31 December 2015, they were dismissed
either then or
during January 2016. There was no evidence of a fair
reason being advanced for the dismissals and the dismissals were not
preceded
by any kind of procedure. Hence, he found the dismissals
substantively and procedurally unfair.
[32]
In determining an appropriate remedy, the
arbitrator rejected the applicants’ contention they should be
reinstated on the
basis that it was clearly inappropriate in the
circumstances. He found that both the applicants and the municipality
were acutely
aware there was never an intention to employ them
permanently, and it was simply a result of the municipality ‘slipping
up’
by allowing them to continue working after the expiry of
their respective fixed term contracts, which occurred on various
dates
during 2015.
[33]
He decided that the only appropriate relief he
could grant them was just and equitable compensation. He decided on a
sum of compensation
of R 10,000 each, considering the circumstances
of their dismissal, their limited lengths of service and the fact
that the parties
were in agreement that their employment would be
limited to specific periods. The amount was equivalent to four
months’ wages.
Grounds of review
[34]
The applicants wish to review and set aside the
award of compensatory relief and replace it with an order of
reinstatement.
[35]
The applicants’ central concern with the
award is the arbitrator’s failure to order their reinstatement
in the positions
they occupied under the NHI pilot project, but as
permanent employees. They contend no reasonable arbitrator could have
found that
their reinstatement in that capacity was inappropriate
merely on the basis that the municipality had blundered
administratively
in allowing the applicants to continue to work,
without them signing new fixed terms contracts.
[36]
They argue,
as a matter
of law, that the fact that it was never the municipality’s
intention to employ them permanently cannot be a basis
for refusing
reinstatement.
[37]
The applicants submit the arbitrator committed a
mistake of law in failing to comply with an obligation to reinstate
them under
section 193(2) of the LRA because there was no basis on
any of the grounds of exception in that section
for
deviating from the prescribed remedy of reinstatement. Moreover, the
arbitrator’s failure to have regard to the provisions
of s
193(2) was unreasonable.
Evaluation
[38]
The
crux of the review concerns whether the arbitrator’s award of
compensation was both competent and not unreasonable
relief,
based on the facts of the dispute. In the case of a substantively
unfair dismissal, the decision to award compensation can
only be
competent if it was feasible for an arbitrator to conclude, as a
matter of fact, that one of circumstances envisaged in
sub-sections
193(2)(a),(b) or (c) applied
[1]
.
[39]
I agree that the arbitrator failed to articulate
which, if any, of the exceptions in s 193(2) he relied on to reject
reinstatement
as a remedy. He ought to have expressly articulated
this, even though it would seem he might have had s 193(2)(c) in
mind. His
train of reasoning appears to have been that, since the
terms on which the applicants had been engaged had always been on a
fixed
term basis, they could not be reinstated on a permanent basis.
The applicants argue that because he correctly accepted that they
were permanently employed at the time of their dismissal, there was
no obstacle to him reinstating them in that capacity.
[40]
Could
no reasonable arbitrator have disagreed with this argument and
reached the same conclusion as the arbitrator? The only potential
basis on which reinstatement could have been refused was if
s193(2)(c) applied, namely if it was not reasonably practicable to
do
so. In
Equity
Aviation Services (Pty) Ltd v CCMA
,
the Labour Appeal Court held that it was not sufficient to refuse
reinstatement on this ground merely because it would be
“
inconvenient,
troublesome or uncomfortable”
[2]
.
To be reasonably practicable reinstatement must be reasonably
feasible
[3]
.
[41]
What the applicants sought was to be re-employed
as volunteer community health workers on the NHI pilot project, but
as permanent
employees. The NHI pilot project was part of the
Extended Public Works Programme, a broad and multifaceted development
scheme of
government first initiated in 2003.
[42]
In his submissions in argument at the arbitration
hearing, the municipality’s representative referred to the
events which
led to the impasse and the eventual termination of the
applicants’ employment. He explained that volunteer community
health
workers under the auspices of the NHI pilot project were
employed on fixed term contracts. The applicants refused to sign
replacement
fixed term contracts after their previous ones had
lapsed, because they were now working on an indefinite basis. He had
argued
that they could only have been employed on a permanent basis
if they had a reasonable expectation at the end of their last fixed
term contracts that they would be employed permanently. Their
employment as volunteer community health workers was linked to the
NHI pilot project which had a fixed life span of four years and
employment under the project required them to enter fixed term
contracts. It was not disputed that if the applicants had not refused
to sign the new fixed term contracts, which were given to
them
belatedly, they would have been employed on another twelve-month
contract.
[43]
The municipality argued that it could not have
been possible for the arbitrator to reinstate the applicants on a
permanent basis
in jobs that were fixed term appointments in terms of
the pilot project EPWP scheme. The applicants contended that all of
this
was irrelevant, given that they had become permanent employees.
[44]
However, it is difficult to see how the applicants
could be reinstated
permanently
in the position of volunteer community health
workers attached to the NHI pilot project if those posts were only
available as fixed
term appointments. The only way the applicants
could be ‘reinstated’ on a permanent basis would
necessitate altering
a significant feature of those jobs by
converting them into permanent posts. It bears mentioning that the
posts had been offered
to the applicants on the normal fixed term
basis, but they declined to accept them even when it became clear the
employer was not
prepared to continue to employ them on an indefinite
basis, which was incompatible with the nature of the positions under
the pilot
project.
Conclusion
[45]
In light of the discussion above, in my view, it
would not be untenable for an arbitrator to conclude that to
reinstate the applicants
permanently in volunteer community health
worker jobs would not be reasonably practicable and that compensation
as an alternative
remedy was therefore warranted. Accordingly, it
cannot be said no reasonable arbitrator could have awarded the same
relief as the
commissioner did in this case.
[46]
On the question of costs, I am not persuaded this is a case in which
the normal principle of not making a cost award
should be departed
from.
Order
1.
The review application is reinstated.
2.
The Applicants’ late filing of the review
application is condoned.
3.
The review application is dismissed.
4.
No order is made as to costs.
R Lagrange
Judge
of the Labour Court of South Africa
.
Representatives:
For the Applicant: Z Feni
instructed by Qhali Attorneys
For the Third Respondent:
W Bekker instructed by Rambevha Morobane Attorneys
[1]
193
Remedies for unfair dismissal and unfair labour practice
(1)
If the Labour Court or an arbitrator appointed in terms of this
Act finds that a dismissal is unfair,
the Court or
the arbitrator may-
(a)
order the employer to reinstate the employee from
any date not earlier than the date of dismissal;
(b)
order the employer to re-employ the employee, either in
the work in which the employee was employed before
the dismissal or in other reasonably suitable work on any
terms and from any date not earlier than the date of dismissal;
or
(c)
order the employer to pay compensation to the employee.
(2)
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless-
(a)
the employee does not wish to be reinstated or
re-employed;
(b)
the circumstances surrounding the dismissal are such
that a continued employment relationship would be intolerable;
(c)
it is not reasonably practicable for the employer to reinstate
or re-employ the employee; or
(d)
the dismissal is unfair only because the employer
did not follow a fair procedure.
[2]
(201d1) 32 ILJ 590 (LC),
[2010] JOL 26456
(LC) at par 36
[3]
Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v National
Union of Mineworkers obo Masha and others (2016) 37
ILJ
2313 (LAC) at paragraph
11.