THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR434/2021
In the matter between:
MUNICIPAL INFRASTRUCTURE SUPPORT AGENT Applicant
and
COMMISSIONER: MARTIN SAMBO N.O First Respondent
COMMISSIONER SELOLONG MOSOMA N.O Second Respondent
GENERAL PUBLIC SERVICE SECTORAL Third Respondent
BARGAINING COUNCIL (GPSSBC)
CASPER HENDRICK BADENHORST Fourth Respondent
Heard: 25 June 2025
Delivered: 25 March 2026
___________________________________________________________________
JUDGMENT
___________________________________________________________________
BALOYI, AJ
Introduction
(1) Reportable: NO
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
[1] The applicant seeks to review and set aside two awards issued respectively
by the first and second respondent. The first award (issued by the first
respondent), is a jurisdictional ruling in terms of which the commissioner
found that the applicant was an employee of the applicant and that the third
respondent (the Bargaining Council) has jurisdiction to hear the fairness or
unfairness of the dismissal of the applicant.
[2] The second award was (issued by the second respondent) in terms of which
the commissioner found that the termination of the applicant’s contract
amounted to dismissal in terms of section 186(1)(b) of the Labour Relations
Act (LRA).
1
The facts
[3] The facts in this matter are largely common cause, however for context , it is
important to set out the relevant facts.
[4] In 2012, the applicant was established as a national component of the
Department of Cooperative Government and Traditional Affairs. It is founded
in terms of section 7(2) of the Public Service Act.
2 The mandate of the
application is to support municipalities to conduct effective infrastructure
plaining to archive sustainable service delivery; support and assist
municipalities with the implementation of infrastructure project and to build the
capacity of municipalities to undertake effective plaining, delivery, operations,
and management of infrastructure.
[5] Prior to the establishment of the applicant, the mandate relating to the
development and maintenance of the infrastructure of the municipalities was
carried out by the Development Bank of South Africa (DBSA) through a
project or initiative called Siyenza Manje.
[6] To carry out the project, the DBSA concluded consultancy agreements with
engineers, town planners, and project managers. The fourth respondent was
1 Act 66 of 1995, as amended.
2 Act 103 of 1994.
3
one of the consultants who concluded a consultancy agreement with the
DBSA as a town planner.
[7] On its formation, the applicant took over the consultancy agreement from the
DBSA. It is not disputed that the fourth respondent first entered into a
consultancy agreement from 1 April 2012 to 31 September 2012. A new
agreement was entered into for the period 1 October 2014 until 30 September
2015. Another agreement was entered into for the period 1 April 2015 to 31
March 2018. The agreement was also extended from 1 April 2018 to 31 May
2018.3
[8] It is also not in dispute that the fourth respondent’s appointment by the
applicant was preceded by supply chain management process and not in
terms of the human resource process.
4 In essence, it is not in dispute that the
fourth respondent was appointed as a consultant and in terms of the contract
the relationship is described as one of an independent contractor.5
[9] The fourth respondent was appointed in terms of the contract to perform or to
render specific town plaining services set out in the contract. The fourth
respondent was paid a professional fee at the agreed rate per hour not
exceeding the set cap of 144 hours per month. It is stated that the
professional fee agreed upon was R361.53 for a maximum of 144 hours per
month.
6
[10] It is also not in dispute that the fourth respondent was paid professional fees
monthly after submitting invoices and supporting documents as proof of
services rendered. Furthermore, the payment of the invoices or professional
fees was subject to satisfactory delivery of service as assed by the applicant.
[11] It is not in dispute that , in terms of the agreement, the fourth respondent was
required to enter into a performance agreement detailing the areas of
performance and the standard of performance expected from him. To that
3 Bundle A: application for review, page 15 -16, at paras 22 and 23.
4 Bundle A: application for review, page 16, at para 24.
4 Bundle A: application for review, page 16, at para 24.
5 Bundle B:application for review, page 124, at para 76.
6 Bundle A: application for review, page 16, at para 26.
4
end, the fourth respondent was to submit a report detailing his performance ,
including his plan for the coming month.
[12] It is not in dispute that where the fourth respondent performed poorly, the
applicant would deduct a percentage not exceeding five percent (5%) from his
professional fees.
[13] During 2016/2017, the applicant reviewed its service delivery model and
resolved to employ the technical capacity to deployed to the municipalities
through human resource management process. A structure was developed
and approved in accordance with the Public Service Regulations.
[14] Following the approval of the structure, the applicant advertised posts
including the position of town planners.
7 The fourth respondent applied for the
position of a town planner and was not shortlisted for the interview.
[15] The fourth respondent filed a dispute of unfair dismissal in terms of section
191 of the LRA.
The arbitration proceedings
[16] The issue that had to be decided before the first respondent was whether the
fourth respondent was an employee of the applicant. In essence , the
commissioner found that in cases where the presumption under section 200A
of the LRA are not applicable because the person earns beyond the
threshold, the factors listed in the presumption may be used as guide for
purpose of determining whether a person is in reality an employee or is self -
employed (independent contractor) The commissioner found that the fourth
respondent has given evidence not only of the terms of contract that indicate
an employment relationship but has also indicated same in the execution of
his duties per contract. The commissioner ultimately ruled that the applicant in
its argument emphasised form of the contract and not the substance as
alleged by the fourth respondent. After analysing the argument , the
commissioner ruled that the fourth respondent is an employee of the applicant
and that the Bargaining Council has jurisdiction to determine the matter.
and that the Bargaining Council has jurisdiction to determine the matter.
7 Bundle A: application for review, page 61 to 63.
5
[17] Following the ruling by the first respondent, the matter came for an arbitration
before the second respondent. The issue that the commissioner had to decide
was whether there exist a dismissal concerning the non-renewal of fixed term
contract.
[18] The fourth respondent’s evidence, as summarised by the commissioner was
that he worked for the applicant as a Town Planner. He was initially appointed
in 2007 under the DBSA program to provide support to under -capacitated
municipalities in the Free State Province. That the applicant took over the
program in 2012 to continue support of the under -capacitated municipalities.
That his scope of work remained the same since 2007 until 2018.
[19] The commissioner found that an expectation had been created since from the
days of the DBSA and when the fourth respondent and other employees
move to the applicant that they were need in the program. Further , they took
part in the formulation of the applicant’s organisational structure because
there was no structure in place. He testified that they were promised that they
would be accommodated once there was an approved structure in place.
[20] The fourth respondent testified that the contract was renewed numerous times
when they were waiting for the permanent structure so that they could be
absorbed in permanent positions. That the discussion took place at
management meetings and the decision was communicated to them by the
Regional Management.
[21] The fourth respondent testified that in October 2017, they were informed that
there was a structure in place and the positions will be advertised and they
must apply for the positions. In 2012, they were told that their positions would
be converted into permanent structure and they will be permanently absorbed
by the applicant. That they had a reasonable expectation since 2012, they will
be permanently absorbed.
[22] He testified that they were informed not to worry about meeting the minimum
[22] He testified that they were informed not to worry about meeting the minimum
requirements stated in the advertisement. The fourth respondent testified that
he applied for the position and, according to the advert he met the minimum
requirements but to his surprise he was not shortlisted nor given any reason
6
for not being shortlisted. His two-month extension contract came to an end on
31 May 2018.
[23] The applicant’s witness was one Josephat Makhuba, who testified that he was
employed by the applicant as Deputy Director Human Resource Management
and Development. He has been employed by the applicant since 2016. He
testified that for the applicant t o exit as a public entity, it needed a structure
approved by the Minister of Public Services and Administration.
[24] He testified that after approval of the structure, the applicant embarked on a
recruitment process to fill the vacant positions in line with the public services
prescripts. That employees who were in a fixed term contracts including the
fourth respondent were not given preferential treatment but treated the same
way as any other applicant. That the positions were advertised and everyone
was given a chance to apply and only qualified candidates were invited to the
interviews. That the fourth respondent was not invited to the interview as the
panel decided that a master’s degree should be added as a requirement. The
applicant did not possess a master’s degree and he was not invited for the
interview.
[25] The witness testified that he does not know what guided the person who
promised the fourth respondent that he will be accommodated or absorbed
from fixed term contract to permanent contract.
The commissioner’s findings
[26] The second respondent made the following findings:
26.1 That it is common cause that the respondent embarked on a
recruitment process in September 2017 to fill the vacant position
including the one which was occupied by the applicant. The applicant
now faced a dilemma , if he did not apply for the position he occupied,
he, might well be unemployed from 1 June 2018. If he applied and was
unsuccessful, the same result still follows . He applied for the position,
with an understanding that they must not worry about not meeting the
requirements. When the positions were advertised the applicant had to
7
compete with unknown number of candidates who might apply for the
positions. The applicant all along expected to be absorbed
automatically into the post as promised. I t became evident during the
proceedings that the reason why the applicant was not shortlisted was
after the panel changed the initial minimum requirement from a degree
to master’s degree.
26.2 That there can be no doubt that prior to the approval of the
respondent’s structure the respondent recognised the reasonable
expectation of a renewal of the contracts. The practice that the
respondent has followed for many years is proof thereof. The applicant
also says so. The expectation created was that the applicant would be
accommodated once there is a structure in place, however, once the
structure was approved and in place the respondent then followed what
the public service prescripts prescribed in terms of filling the vacant
positions. The applicant occupied the position and had a reasonable
expectation to keep on occupying the position on a permanent basis.
26.3 The applicant maintained throughout the proceedings that reasonable
expectation was created by the respondent since 2012 that they will be
accommodated or absorbed once there is a structure in place. The
respondent did not lead any evidence to disprove that the applicant
expectation was unreasonable except to say that it had to follow the
public service prescripts in order to fill the vacant positions. The
applicant has already demonstrated that there was guarantee that they
will be accommodated or absorbed once there is a structure in place.
26.4 The question that one has to ask is whether the expectation of the
applicant was reasonable or not? The answer would be yes; the
expectation was reasonable. This I say because taking into
consideration the applicant’s evidence together with the surroundings
circumstances of the entire case. I have no reason to reject the
applicant’s evidence that he had a reasonable expectation that they will
applicant’s evidence that he had a reasonable expectation that they will
be absorbed or accommodated once there is a structure in place. Any
reasonable employee in the circumstances would have expect the
8
employer to retain him on an indefinite basis after having fulfilled the
conditions agreed upon. It is common cause that the applicant ’s
contract was renewed on numerous occasions while waiting for the
respondent to have an approved structure in place.
26.5 In addition to these, once the structure was approved and in place the
respondent advertised the positions together with the one occupied by
the applicant. The applicant together with other employees were
encouraged to apply and given the advertisement weeks prior to
prepare their documents. They were further told that they must not
worry about not meeting the minimum requirements. This tacit
undertaking was made by a person with necessary authority to do, no
contrary evidence was led to show that such undertaking was not
made to the applicant. It is common cause that the applicant met the
minimum requirements as per the job advertisement before the
recruitment panel decided to change it from a degree to master’s
degree. According to me this is a classic understanding that the
applicant will be accommodated or absorbed on indefinite contract and
the recruitment process was just a mere formality. Under these
circumstances, I have no reason to reject the applicant’s evidence that
he had a reasonable expect ation that he will be accommodated or
absorbed permanently by respondent once there was a structure in
place. There were never any intentions that he be short term employee
when he was put on succussive fixed term contracts.
26.6 That the evidence and the circumstances of the case support the
applicant’s contention that he had reasonable expectation of being
accommodated or absorbed by the respondent once there is structure
in place. The facts that support the contentions are t hat there is
undisputed evidence that the applicant together with other employees
were informed in 2012 that they will be accommodated once there is s
structure in place hence their contracts were renewed or extended until
structure in place hence their contracts were renewed or extended until
there was a structure in place. The applicant was given the job
9
advertisement so they can prepare his documents. They were told not
to worry about not meeting the minimum requirements.
26.7 The respondent’s argument is that even if there was expectation, it can
never be reasonable expectation if it conflicts with statutory provision.
The respondent had to follow the required process as prescribed by the
Public Services Act and the Public Services Regulations.
26.8 That the LRA supersedes the provisions of the Public Service Act
where employees rely upon reasonable expectation of permanent
employment. The reliance on Public Service Act and its regulations has
a serious consequence if it meant a temporary employee in the public
service could not rely on the protection of section 186(1)(b).
The grounds of review
[27] In respect of the jurisdictional ruling ( first respondent’s ruling) two grounds of
review are advanced by the applicant. The grounds of review are the
following:
27.1 That the Bargaining C ouncil lacked jurisdiction as the fourth
respondent was not dismissed, his contract expired on 31 May 2018. It
is submitted that the fourth respondent was not employed by the
applicant in terms of the LRA and the BCEA. Reference is made to
clause 7 of the contract , which records that the agreement shall not
create an employment contract.
27.2 The second ground of review is that the fourth respondent was
appointed in terms of the supply chain management policy. This means
that the fourth respondent was a service provider and not an employee.
[28] In relation to the arbitration award (second respondent’s award), the applicant
advances the following grounds of review:
28.1 Firstly, the commissioner had to fail to apply his mind fairly and
objectively to the evidence presented before him. It is submitted that
the commissioner considered hearsay evidence in that Ms Mpalami
10
whom the applicant testified that she encouraged the fourth respondent
and other employees to testify was not called to testify after it was
sated that she will come and testify before the commissioner.
28.2 Secondly, that the commissioner misdirected himself in respect of the
finding in paragraph 65 of the award that the hearsay evidence was not
disputed.
28.3 Thirdly, that the commissioner took into consideration irrelevant
consideration in that it was not the fourth respondent’s evidence that
“they must not worry about meeting the requirements for the post”.
28.4 Fourthly, that in relation to paragraph 72 of the award, the
commissioner misdirected himself in finding that “there can be no doubt
that prior to the approval of the respondent’s structure the respondent
recognised the reasonable expectation of renewal of the contracts ”.
The applicant submit that this finding is supported by any evidence.
Furthermore, the fourth respondent did not challenge the recruitment
process which was against his expectation.
28.5 Fifthly, that the finding in paragraph 75 of the award is unreasonable as
the applicant’s policy required that all permanent position be advertised
and a fair and transparent process of recruitment be followed.
28.6 Sixth, that the finding in paragraph 76 of the award to the effect that the
fourth respondent’s expectations were reasonable in incorrect and
wrong. It is submitted hat the fourth respondent’s expectation of being
absorbed automatically without following the prescripts is against the
applicant’s policies.
Discussion
11
[29] The fourth respondent’s claim before the commissioner was premised on
section 186(1)(b). Section 186(1)(b) was interpreted by the Labour Appeal
Court (LAC) in University of Pretoria v CCMA and Others8 as follows:
‘The words employed in s186 envisage that two requirements must be met for
an employer’s action to constitute a dismissal:
(1) a reasonable expectation on the part of the employee that a fixed term
contract on the same or similar terms will be renewed; and
(2) a failure by the employer to renew the contract on the same terms or a
failure to renew it at all.
These words do not however carry the meaning, which is urged by third
respondent, namely that, by being employed on the basis of a series of fixed
terms contracts, an employee has without more a reasonable expectation of a
permanent appointment…
The words chosen by the legislature, absent an amendment to the legislation,
cannot carry the burden of third respondent’s case in that it covers a
restrictive set of circumstances, namely a reasonable expectation of a
renewal of that which had previously governed the employment relationship,
namely a fixed term contract which had previously been enjoyed, which had
now expired and, by virtue of the factual matrix created, at best, a reasonable
expectation of a renewal.’
[30] It is already settled that the onus of proof in dispute concerning a claim in
terms of section 186(1)(b) is on the employee to prove the dismissal by
placing facts before the commissioner which objectively considered, would
lead to conclusion that the employee held a reasonable expectation that his
fixed term contract would be renewed. In Joseph v University of Limpopo &
Others
9 ,it was held that:
‘The onus is on an employee to prove the existence of a reasonable
expectation. He or she does so by placing evidence before an arbitrator that
there are circumstances which justifies such an expectation. Such
8 (2012) 25 ILJ 183 (LAC) at paras 18 -25.
9 [2011] 12 BLLR 12 1166(LAC) at para 35.
12
circumstances could be for instance, the previous regular renewals of his or
her contract of employment, provisions of contract, the nature of business and
so forth. The aforesaid is not a closed list. It all depends on the given
circumstances and is a question of fact.’
[31] In this matter, the issue of jurisdiction was decided by the first respondent
wherein he found that the Bargaining Council has jurisdiction. In my view, this
Court should consider whether the fourth respondent discharged his onus and
proved that he was dismissed ( or he was an employee) before the second
respondent. If it is found by this court that the fourth respondent has not made
case for dismissal, it follows that the Bargaining Council had no jurisdiction.
10
[32] In the case of Dierks v University of South Africa 11, this Court summarised
some factors which must be taken into consideration when determining
whether an employee has been dismissed in terms of section 186(1)(b) of the
LRA. The Court held as follows:
‘[132] In my view, it can be deduced from the aforegoing and the use of the
word "reasonable" that the Applicant as employee must prove that he
had an expectation of renewal and that that expectation was
reasonable in that apart from subjective say -so or perception there is
an objective basis for the creation of his expectation.
[133] A number of criteria have been identified as considerations which
have influenced the findings of past judgments of the Industrial and
Labour Appeal Courts. These include an approach involving the
evaluation of all the surrounding circumstances, the significance or
otherwise of the contractual stipulation, agreements, undertakings by
the employer, or practice or custom in regard to renewal or re-
employment, the availability of the post, the purpose of or reason for
concluding the fixed term contract, inconsistent conduct, failure to give
reasonable notice, and nature of the employer's business. (See
Olivier: supra at 1030).
reasonable notice, and nature of the employer's business. (See
Olivier: supra at 1030).
[134] These factors are not a numerus clausus. Indeed, in my view, the
identified approach of an evaluation of all the surrounding
10 Phaka and 19 Others v Bracks [2015] 5 BLLR 514(LAC) at para 31.
11 (1999) 30 ILJ 1227 (LC) at paras 132 to 134.
13
circumstances entails an analysis of the facts in any given situation for
the purpose of establishing whether a reasonable expectation has
come into existence on an objective basis.’
[33] Against the above principles and authority, I now turn to the facts of this case.
[34] The fourth respondent contends that he had reasonable expectation that his
contract will be renewed or be employed on a permanent basis. This
contention, according to the fourth respondent is supported by the fact that
the contract has been renewed at least four times from 2012 to 2018. It is
submitted on behalf of the fourth respondent that the applicant regarded him
as an employee because he was issued with an email address and business
cards, he was required to work a minimum amount of 144 hours per month,
he was required to submit travel claims for travel expenses, he had to
conclude performance agreement, he had to submit monthly reports and
received remuneration on monthly basis and that he was controlled and
supervised by the management of applicant who provided him with tools of
trade such as laptop.
12
[35] The applicant submits in this regard that the fourth respondent was not an
employee. The applicant contends that the fourth respondent is excluded from
section 200A of the LRA. It is further submitted that the parties should refer to
the contracts concluded since they set out their intentions.
[36] In 2012, the applicant and the fourth respondent concluded a specialist
consultancy agreement.
13 Clause 7 of the agreement set out the relationship
between the parties. It is expressly stated that the agreement shall not create
an employment contract or an employer -employee relationship. Clause 7.2 of
the agreement expressly states that the relationship between the parties is
that of independent contracting parties.
[37] The contract should be read as a whole, and the context and intention of the
parties must be understood. It is clear in my view that the parties’ intention
parties must be understood. It is clear in my view that the parties’ intention
was not to create an employer-employee relationship. All the activities that the
12 Page 20, para 76, fourth respondent’s head of argument.
13 Record for review, vol 2, page 141 – 146.
14
fourth respondent executed were agreed to in terms of the contract on the
understanding that he was not an employee. In this regard, I am guided by the
LAC judgment in the matter of Vermooten v Department of Public Enterprises
(Vermooten)14, the Court stated the following:
‘The consultancy agreement was not a sham. Therefore, in the absence of
any overriding policy considerations, neither a tribunal nor a court may ignore
its terms. Where the parties are in a relatively equal bargaining position and
consciously elect one contract or relationship over another, the legal effect
should be given to their choice. To allow one of these parties to change or
contend that the legal relationship between them is something else holds
important implications for the integrity of the legal framework of departments
of State. The appellant seeks to be defined as an employee and so, it seems
to me, to achieve what could not be achieved when negotiations began ie to
be the Director: Aviation at a remuneration level exceeding double the
prescribed remuneration and with the inclusion of all the benefits which were
previously excluded by reason of the consultancy agreement. In other words,
he wishes to become part of an organisation which could not and still cannot,
accommodate him at his desired remuneration level.’ (own emphasis)
[38] What was said in Vermo oten in my view applies equally to the case of the
fourth respondent. My view is also supported by the fact that the fourth
respondent submitted a bid, obviously in the bid he made proposals that were
accepted by the applicant.15
[39] The fourth respondent also relies on the promises that he and the other
consultants will be appointed permanently once the structure was approved.
In this instance, the fourth respondent relied apparently on what was told to
him by his supervisor , Ms Mpalami. It was indicated during the arbitration
proceedings that Ms Mpalami will be called to testify but she was not called.
proceedings that Ms Mpalami will be called to testify but she was not called.
The applicant contends that this evidence of promises is hearsay as Mpalami
was never called and that commissioner accepted the fourth respondent’s
14 [2017] 6 BLLR 606 (LAC) at para 26.
15Record for review, vol 2, page 188 – 189.
15
hearsay evidence. In ABSA Investment Services v Crowhurst16,the LCA said
the following where a witness is available but is not called to testify.
‘[14] Counsel’s reason for supporting the approach adopted by Ndlovu AJ
was to counter the failure of AIMS to call Mr Johnson to the witness
stand. That was indeed a factor which weighed with the learned Judge
below. Counsel argued that the matter had to be decided in
accordance with the probabilities; that the probabilities here were
settled; and that therefore there was no point in calling Mr Johnson to
re-enforce the probabilities. The first and basic flaw in this argument is
that the presence or absence of corroboration is in itself usually an
element of creditability. Two witnesses are sometimes better than one,
although not always. Secondly, in this instance I am not of the view
that the probabilities can be described as settled. Thirdly, it is long
established that the failure of a party to call an available witness may
found an adverse inference, the inference being that the witness will
not support – and may even damage – that party’s case. Compare
Zeffertt et al: SA Law of Evidence (5 ed) at 128-130.’ (own emphasis)
[40] In my view, the applicant’s contention that the Commissioner has relied on
hearsay evidence is correct. Such evidence should not have been accepted in
light of the fact that Mpalami was not called to testify.
[41] In paragraph 76 and 77 of the award, the Commissioner found that the fourth
respondent had reasonable expectation that he will be accommodated or
absorbed permanently once there was a structure in place. To support this
view, the commissioner relies, firstly, on the evidence of the fourth respondent
that they were promised way back in 2012. Secondly , the contract were
renewed until there was a structure in place and the positions were
advertised, thirdly , they were told not to worry about meeting the minimum
requirements, fourthly, the fourth respondent faced a dilemma that if he and
requirements, fourthly, the fourth respondent faced a dilemma that if he and
the others do not apply for the position they will not be employed from 1 June
2018 and they had to compete with unknown number of candidates who might
apply for the post , and lastly, the fourth respondent met the requirements as
16 2005 ZALAC 14 at para 14.
16
per the job advertisement and also that the applicant was a good performer
and was rewarded for such performance.
[42] The starting point in relation to the findings by the commissioner is that the
applicant advertised the posts. The fourth respondent knew that the post will
be advertised and on his own evidence he was encouraged to apply , and he
did
17. The fourth respondent was not shortlisted for the interview. 18 The fourth
respondent in my view intended to contest for the position by submitting his
application. He cannot after not b eing shortlisted claim that he was dismissed
or had reasonable expectation that he will be absorbed automatically into a
permanent position. It was up to the fourth respondent to challenge the
interview process on the basis that he and others were promised that will be
absorbed into the new structure.
[43] In this regard I agree with what was stated in Pikitup Johannesburg v
Muguto
19, where this Court said the following:
‘It is my view that at the time that Maputo’s post was advertised, Pikitup’s
message was clear and unequivocal that her contract would not be renewed
or extended. To the extent that the position was advertised, it is my view that
if Muguto harboured any legitimate expectation that her fixed term contract
would be renewed or that she would be appointed permanently as she
alleged, it was at that point that she needed to have taken steps in regard to
the recruitment process or raise issues surrounding her legitimate
expectation. She did not do so, and it can be accepted that she had resigned
herself to the reality that the post was indeed to be advertised, and like any
other candidate, she had to prove her worth in the interview processes.
To the extent that she had applied for the position, was shortlisted,
interviewed and was unsuccessful, there can be no talk of a legitimate
expectation, as any outcome related to that recruitment process, led to a new
expectation, as any outcome related to that recruitment process, led to a new
dispute. Her conduct in relation to her active participation in the recruitment
process is irreconcilable with her contentions that she had a legitimate
expectation of a renewal of her fixed-term contract.’ (own emphasis)
17 Record for review: vol 4, page 334.
18 Record for review: vol 4, page 401.
19 (2019) 40 ILJ 2829 (LC) (13 May 2019).
17
[44] On the totality of the evidence, the fourth respondent was not an employee of
the applicant. The fourth respondent was an independent contractor . The
Bargaining Council had no jurisdiction to hear the matter.
Costs
[45] In relation to costs, the Court has a broad discretion in terms of section 162 of
the LRA to make orders for costs according to the requirements of the law
and fairness. In my view, those requirements are best served by each party
bearing their own costs.
[46] I make the following order:
Order
1. The arbitration award issued by the first respondent under case
number GPBC136/2018 on 5 June 2019 is reviewed and set aside.
2. The arbitration award issued by the second respondent under case
number GPBC 1346/2018 on 21 February 2021 is reviewed and set
aside.
3. It is declared that the third respondent had no jurisdiction to entertain
the dispute referred to it by the fourth respondent pertaining to his
alleged unfair dismissal.
4. No order as to costs.
______________
F Baloyi
Acting Judge of the Labour Court of South Africa
18
Appearances:
For the Applicant: Adv MH Mhambi
Instructed by: State Attorney, Pretoria
For the Respondent: Mr DP Huggett
Instructed by: Hugget Retief Inc