Amalungelo Workers' Unions obo Jabulani and Others v Cilliers N.O and Others (JR 245/20) [2023] ZALCJHB 340 (29 November 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

case no: JR 245 / 20

In the matter between: AMALUNGELO WORKERS’ UNION obo MAYISELA STEVEN JABULANI & 29 OTHERS Applicants and LANCE CILLIERS N.O. First Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Second Respondent UNILEVER SOUTH AFRICA (PTY) LTD Third Respondent

Heard: 24 August 2023

Delivered: 29 November 2023

This judgment was handed down electronically by circulation to the parties and legal representatives by email. The date and time for hand-down is deemed to be 29 November 2023

Summary: CCMA arbitration proceedings – Review of jurisdictional ruling of arbitrator – principles considered – test for review – s 145 of LRA 1995 – reasonable outcome test does not apply – review considered on the basis of a de novo determination of whether ruling is right or wrong

Dismissal dispute – reason for dismissal considered – issue in dispute concerns dismissal for operational requirements as contemplated by s 189 / 189A of LRA – CCMA has no arbitration jurisdiction

Dismissal dispute – applicants referring dispute classified as dismissal for reasons unknown – despite dispute description arbitrator obliged to determine true nature of dispute – arbitrator correctly finding that dispute one of dismissal relating to operational requirements – s 191(12) not applicable – only Labour Court has jurisdiction to adjudicate dispute

Dismissal – applicants’ case as contemplated by s 198B already determined – applicants are fixed term contract employees whose contracts expired – applicants thus not dismissed – CCMA having no jurisdiction

Review of jurisdictional ruling – finding by arbitrator correct – review application dismissed

JUDGMENT

SNYMAN, AJ

Introduction

[1] This judgment concerns an application brought by the applicants in terms of section 145 as read with section 158(1)(g) of the Labour Relations Act (LRA),[1] to review and set aside a jurisdictional ruling handed down by the first respondent, in his capacity as an arbitrator of the Commission

for Conciliation, Mediation and Arbitration (CCMA), the second respondent.

[2] In this matter, the applicant trade union, Amalungelo Workers’ Union (AWU), pursued an unfair dismissal dispute to the CCMA, on behalf of its members, being all the individual applicants in casu. In this referral, and as will be addressed in more detail later in this judgment, the nature of the unfair dismissal dispute was

described by the applicants as a dismissal for reasons unknown.

[3] The unfair dismissal dispute ultimately ended up before the first respondent for arbitration. The third respondent, as the employer party in the proceedings, opposed the matter, on the basis that the dispute concerned one of a dismissal for operational requirements, and thus the CCMA had no jurisdiction to arbitrate the same.

[4] In a jurisdictional ruling dated 16 October 2019, the first respondent held that the individual applicants were dismissed by the third respondent based on its operational requirements, and as a result, the dispute could only be adjudicated by the Labour Court in terms of section 191(5)(b)(ii) of the LRA, with the CCMA having no jurisdiction to arbitrate the same.

[5] The jurisdictional ruling was received by the applicants on 16 October 2019. On 10 February 2020, the applicants’ review application was filed, in which the applicants sought to review and set aside the jurisdictional ruling of the first respondent. However, such review application, by virtue of the provisions of section 145(1) of the LRA, had to have been brought within six weeks of 16 October 2019, thus being on or before 28 November 2019. It follows that the review application is some two and a half months late, and condonation was required.

[6] The applicants applied for condonation as part and parcel of the review application itself. The requirements for condonation are trite and are set out in the well-known judgment of Melane v Santam Insurance Co Ltd[2]. These requirements entail a consideration of the length of the delay, the explanation for the delay, the importance of the case (prejudice) and the prospects of success of the applicant. The requirements are interrelated, and must be holistically considered, with the proviso that if there is no explanation for the delay, then the prospects of success may well become irrelevant.[3]

[7] I will first consider the length of the delay. It is true that a delay in excess of two months is the kind of delay that would be considered to be excessive, and thus required an excellent explanation.

[8] Turning next to the explanation for the delay, it was explained that the once the jurisdictional ruling was received by AWU, it experienced some difficulty in coming into contact with all the individual applicants so as to consult them about the ruling, and what the next steps in this matter would be. Steven Jabulani (Jabulani), one of the individual applicants, managed to trace some of the individual applicants and convened a meeting with them on Saturday 2 November 2019. It was decided amongst these applicants to pursue a review application, and Jabulani attended at the offices of AWU on Monday 4 November 2019 to instruct the AWU accordingly. It was then also resolved that M M Baloyi Attorneys, who has been representing the applicants so far, would be approached to ascertain if such attorneys would be willing to conduct the matter on a contingency basis, as the applicants did not have the necessary funds. M M Baloyi attorneys were then approached on 8 November 2019, however on 20 November 2019 such attorneys declined representing the

applicants on this basis. AWU then attempted to find other law firms that would be willing to work on a contingency basis, but by the time the union offices closed on 13 December 2019, representation on this basis could not be found.

[9] When the applicants returned on 13 January 2020 after the festive season, the applicants then, on 20 January 2020, managed to secure representation by their current attorneys of record, who were willing to attend to the matter on a contingency fee basis. A first consultation was set up on 21 January 2020 with the applicants’ current attorneys of record. There were numerous different disputes between the applicants and the third respondent pending at the time, that now also had to be attended to by these new attorneys, as M M Baloyi attorneys withdrew from all matters where they represented the applicants. It then took just more than two weeks for the new attorneys to become fully familiar with all the cases, brief counsel, and then prepare and file the current review application.

[10] I am satisfied that overall considered; the explanation provided by the applicants is acceptable. It is clear to me that at all relevant times, the applicants actively pursued the matter, and was always intent on pursuing it to finality. The logistical difficulties in getting a fairly large group of individual applicants together, who would of course no longer be employed at the third respondent, is understandable. The applicants also actively sought to secure alternative representation when their previous attorneys indicated

that they were no longer willing to continue representing the applicants without the necessary funds. It also cannot be ignored

that a significant portion of the delay occurred over the December holiday season.[4] The period of just more than two weeks it took to prepare and file the review application once the new attorneys became familiar with the case cannot be considered to be an undue delay. Overall considered, the applicants have thus, in my view, provided a proper

explanation for the delay in this instance.

[11] On the issue of prejudice, it is undoubtedly so that this consideration favours the applicants. If condonation is not granted, the review application will fail, in an instance where an issue of jurisdiction is at stake, which is an issue that should be finally determined by this Court. Fairness dictates that the applicants must be given an opportunity to present their review case in this regard to this Court. It may be added that when this matter was argued in Court before me, condonation was not strenuously opposed by the third respondent, and both parties in essence chose to focus on the merits of the review.

[12] Finally, the issue of prospects of success is interwoven with the merits of the review application, and should not be considered separately in this instance. Condonation is thus essential to enable the merits of the review application to be properly and fairly ventilated.

[13] I am therefore inclined to grant the applicants’ application for condonation for the late filing of their review application, and I shall now attend to deciding this review application by first setting out the relevant background facts.

The relevant background

[14] Fortunately, the relevant background facts are uncomplicated, and mostly uncontested or common cause. Nonetheless, the matter has a long and protracted litigation history, with aspects of the dispute being pursued all the way to the Constitutional Court.

[15] The individual applicants, since 2014, had been employed by the third respondent on the basis of fixed term contracts of employment. As a result, and in 2018, AWU pursued a dispute to the CCMA in terms of section 198B as read with section 198D of the LRA, under case number GAEK 3595-18, seeking relief to the effect that the individual applicants be declared to be permanent employees of the third respondent. At the time, they were all still employed by the third respondent. In an arbitration award dated 6 September 2018, arbitrator Lerumo found in favour of the applicants, and determined that the individual applicants had to be considered to

be permanent employees of the third respondent, employed for an indefinite duration, since April 2017.

[16] The third respondent challenged this arbitration award of arbitrator Lerumo on review to the Labour Court, under case number JR 2165 / 18. When the dispute in casu came before the first respondent for arbitration on 10 October 2019, the third respondent’s review application had been prosecuted to completion, however a hearing date was still being awaited. How this dispute was ultimately determined, and what impact this would have on the case in casu, will be dealt with later in this judgment.

[17] It is trite that a review application does not automatically, by virtue of the filing thereof, stay an arbitration award. As a result, and despite the pending review application it had brought, the third respondent nonetheless decided to deal with the individual applicants, where it came to their continued employment with the third respondent, as if they were permanent employees. It did this without prejudice to its rights to pursue the review application to finality.

[18] On 2 July 2019, the third respondent issued a notice as contemplated by section 189(3) of the LRA to all its employees. This included the individual applicants. It is important to consider that this operational requirements process was thus not just limited to the individual applicants, but also concerned all the other employees in the third respondent at its Boksburg site. In short, it was a companywide restructuring at the site, to which section 189A, because of the number of employees involved, applied. The notice was also issued to AWU and the two other unions in the third respondent, being CEPPWAWU and NUFBSAW. The notice referred to the application of section 189A of the LRA in this instance. As to the reason for the restructuring, it was recorded that there was a need to reduce high operational costs as it existed at the time, and that the third respondent was implementing new technology / machines that would require a lesser number of operators. It was envisaged that the headcount in the third respondent be reduced by 106, being from a total of 287 employees to 181 employees.

[19] Initially, the third respondent sought to request facilitation by the CCMA, which was due to start on 19 July 2019. However, and following the first facilitated consultation on 19 July 2019, the third respondent decided not to continue with the facilitated consultation, and on 25 July 2019 filed a notice withdrawing the same. The reason why the third respondent did this was never canvassed in evidence.

[20] On 31 July 2019, the individual applicants were given notice of termination of employment by the third respondent. This notice did not specifically say the individual applicants were retrenched. As will be dealt with below, this was part of the strategy implemented by the third respondent, because of its pending review application. The notice of termination of employment recorded that the employment of the individual applicants would be terminated on the basis of ‘end of contracts’. The last working day of the individual applicants was recorded to be 31 July 2019, however they would be paid notice pay. It was also stated that the individual applicants would be paid severance pay. The UI19 document issued to the individual applicants reflected that the reason for the termination of employment was ‘contract expired’. It was undisputed that the individual applicants ultimately did receive payment of notice pay and severance pay, and payslips were produced to substantiate this, which specifically recorded payment of amounts relating to ‘Notice Pay’ and ‘Gratuities (Retirement / Retrenchment)’.

[21] On 5 August 2019, AWU referred an unfair dismissal dispute to the CCMA, on behalf of the individual applicants. In this referral document, AWU classified the dispute as one concerning an unfair dismissal for reasons unknown. The date of dismissal was reflected to be 31 July 2019. Under the heading ‘Facts of the Dispute’ in the referral, the applicants recorded that ‘employer terminated our services in breach of section 198B(3) …’, and reference was made to the arbitration award of arbitrator Lerumo of 6 September 2018.

[22] The dispute was unsuccessfully conciliated on 21 August 2019, and a certificate of failure to settle was issued on that date. In that certificate, the dispute is merely described as an ‘alleged unfair dismissal’, and it is reflected that such dispute be referred to arbitration. The referral to arbitration was made on the same date, with the issue in dispute merely being described in such referral as ‘dismissal’.

[23] As touched on above, the dispute was set down before the first respondent for arbitration on 10 October 2020. Prior to the set down date, and on 26 September 2020, the third respondent filed a written objection in limine as contemplated by Rule 31 of the CCMA Rules, consisting of a notice of motion, supporting affidavit, and annexures. In this written objection, the third respondent challenged the arbitration jurisdiction of the CCMA. The third respondent explained that all the individual applicants were employed on a project at the third respondent’s Boksburg site, called ‘Project Santa Claus’, which project was aimed at converting the packing hall at the site from corrugated carton packaging to plastic packaging. It was contemplated that this project would end on 31 July 2019. The third respondent pointed out that it has issued a section 189(3) notice to all the employees and the unions. It was pertinently stated in the affidavit that: ‘… The reason for ending the appointment relationship with the Employees on 31 July 2019 was the operational requirements of the respondent,

namely that, due to the stage of completion that project Santa Claus had reached, their services were no longer required. …’ (sic).

[24] In its objection, the third respondent did make reference to its pending review application relating to the arbitration award of arbitrator Lerumo, in which it was determined that the individual applicants were permanent employees. According to the third respondent, if was successful in this review, then the employment of the individual applicants would automatically terminate on 31 July 2019. The third respondent however did specifically state that it also adopted the approach that if it was ultimately found that its review application did not succeed, it nonetheless sought to terminate the employment of the individual applicants based on its

operational requirements, pursuant to section 189A of the LRA. The third respondent pleaded that only the Labour Court could adjudicate

any of these issues.

[25] In opposing the objection in limine raised by the third respondent, the applicants elected not to file an answering affidavit. They did send an e-mail to the CCMA on 2 October 2019, in which the applicants say that as result of the previous proceedings under case number GAEK 3595 – 19, the CCMA had already determined it had jurisdiction. In their address before the first respondent on 10 October 2019, it was then contended that the third respondent withdrew the retrenchments, and reference was made to the notice of 25 July 2019 to the CCMA withdrawing the facilitated consultations, in support of this contention. The applicants however suggested no other reason as to why they would have been dismissed, and in fact conceded that new machines had been brought in as suggested in the section 189(3)

notice.

[26] In his jurisdictional ruling of 16 October 2019, the first respondent considered the referral documents as well as the objection in limine filed by the third respondent and the submissions made by the parties. He concluded that based on the evidence before him, this was clearly a dismissal dispute concerning a dismissal for operational requirements, which could only be adjudicated by the Labour Court. He concluded that the CCMA therefore had no arbitration jurisdiction in this case. The applicants were clearly not satisfied with this outcome, which led to the current review application now before me.

Test for review

[27] As will be dealt with more fully below, the only real question to be decided in this case was whether the CCMA, and thus consequently also the first respondent, had the necessary jurisdiction to arbitrate the applicants’ unfair dismissal dispute.

[28] In Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others[5] the Court considered the well-known review test postulated in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[6] and said:

‘… Nothing said in Sidumo means that the CCMA’s arbitration award can no longer be reviewed on the grounds, for example, that the CCMA had no jurisdiction in a matter or any of the other grounds specified in section 145 of the Act. If the CCMA had no jurisdiction in a matter, the question of the reasonableness of its decision would not arise …’ (emphasis added)

[29] The aforesaid means that where the issue to be considered on review is about the jurisdiction of the CCMA, it is not about a reasonable

outcome. What happens is that the Labour Court is entitled to, if not obliged, to determine the issue of jurisdiction of its own accord. In doing so, the Labour Court determines the issue de novo in order to decide whether the determination by the arbitrator is right or wrong.[7] In SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others,[8] the Court articulated the enquiry as follows:

The CCMA is a creature of statute and is not a court of law. As a general rule, it cannot decide its own jurisdiction. It can only make a ruling for convenience. Whether it has jurisdiction or not in a particular matter is a matter to be decided by the Labour Court …’

[30] Accordingly, and in this instance, I shall proceed to decide this matter de novo on the basis of determining whether the first respondent was right or wrong in his conclusion that the CCMA had no jurisdiction to arbitrate the dispute in casu, and not whether the outcome the first respondent arrived at was unreasonable.

Analysis

[31] Firstly, it is trite that if the individual applicants were indeed dismissed by the third respondent for operational requirements, then the CCMA would have no arbitration jurisdiction.[9] This is because, on the common cause facts, some 30 individual applicants were dismissed, and therefore section 191(12) would not

apply.[10] Alternatively, and should it true that the individual applicants were employed on fixed term contracts of employment that had expired, the CCMA would equally have no jurisdiction to arbitrate the matter, as there would be no dismissal of the individual applicants.[11] It was held in Bidvest Prestige Services (Pty) Ltd v Lebea NO and Others[12] that the aforesaid general legal position of automatic termination of employment instead of a dismissal in the case of the expiry of fixed term contracts of employment remained intact despite the introduction of the provisions of section 198B into the LRA.[13]

[32] The second jurisdictional issue that arises in casu is that even if there is a legitimate and valid fixed term contract that expired, an employee can still challenge this expiry on the basis that it nonetheless constitutes a dismissal. However in such a case, the employee would be compelled to refer an unfair dismissal dispute to the CCMA or bargaining council as contemplated by section 186(1)(b) of the LRA,[14] and provided the requirements of this section are then satisfied, the employee can in that context still prove a dismissal.[15] As held in University of Pretoria v Commission for Conciliation, Mediation and Arbitration and Others[16]:

‘The words employed in s 186 envisage that two requirements must be met in order 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.’

[33] What all this means is that where an employee seeks to pursue an unfair dismissal dispute in circumstances where the employer relies on automatic termination of employment because of the expiry of a fixed term contract of employment, that challenge must be based on either section 186(1)(a), or section 186(1)(b), as the two grounds of dismissal are mutually exclusive. The employee must thus elect one of these two mutually exclusive courses of action. In casu, it is clear the applicants relied on section 186(1)(a), contending they were permanent employees that had been dismissed by notice on 31 July 2019.

[34] The first respondent was very much alive to all of the above, and how all these legal provisions were relied upon by the third respondent in challenging the arbitration jurisdiction of the CCMA, as is evident from the reasoning contained in his ruling. He says that:

‘The strategy of the employer in this issue before me is quite clear: If the Labour Court finds against Commissioner Lerumo, then the employer will simply fall back on the termination of employment as being the completion of a fixed term contract. If the Labour Court finds against the employer, then the fairness of the termination of employment of the employees will be categorised, as per the evidence in the application and the bundle, as an operational requirement dismissal which, in terms of the numbers involved, falls squarely within the jurisdiction of the Labour Court.’

[35] Before turning to considering whether the ruling of the first respondent was correct or not, there have been a number of further developments in the review application by the third respondent under case number JR 2165 / 18. In a judgment handed down by the Labour Court in Unilever SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[17] on 27 October 2020, the Court reviewed and set aside the arbitration award of arbitrator Lerumo on the basis that such arbitrator had no jurisdiction to decide the dispute, which in effect meant that the declaratory relief afforded to the applicants that the individual applicants were permanently employed was expunged, and the position reverted to the contractual dispensation of a fixed term contract of employment linked to Project Santa Claus that ended on 31 July 2019. The applicants sought to appeal this judgment to the LAC, and in a judgment handed down on 29 November 2021 in Amalungelo Workers Union on Behalf of Mayisela and Others v Commission for Conciliation, Mediation and Arbitration and Others[18] the appeal was dismissed. An application for leave to appeal to the Constitutional Court under case number CCT 393 / 21 also failed, when that application was refused on 14 March 2022. Importantly however, and in the judgment of the LAC, the Court held that any dispute as to a breach of section 198B of the LRA by the respondent actually arose in April 2017 already, and as such, it had to have been pursued within six months from that date to the CCMA. The Court concluded that:[19]

‘It was therefore incumbent upon the appellant employees to have referred that act or omission to the CCMA (in this instance) within six months after it had occurred. Essentially it cannot be contested that they only referred that dispute more than a year after the act or omission concerned, by which time it was late. Notwithstanding the condonation that was required for such lateness, as envisaged in s 198D(6) of the LRA, the same was never sought or granted. The arbitrator, apparently, entertained and endeavoured to resolve the dispute oblivious to such lateness.

The court a quo’s ultimate finding that the CCMA (and the arbitrator) did not have jurisdiction in respect of the matter is

therefore unassailable …’

[36] The above state of affairs, as it stands, which undeniably exists when the matter came before me, causes the applicants’ review case substantial difficulties. The incontestable outcome of all this earlier litigation can only have one result. That result is that the individual applicants are not permanent employees of the third respondent, and they were employed on fixed term employment contracts linked to Project Santa Claus which expired on 31 July 2019, and this meant the individual applicants were never dismissed on such date, but their employment simply automatically terminated by operation of law. The third respondent never abandoned this defence, as the first respondent rightly appreciated, but deployed the strategy that if it won the litigation, then it would contend the individual applicants were not dismissed. This is how things turned out in casu.

[37] Accordingly, and on the facts, the individual applicants were not dismissed on 31 July 2019. Their fixed term contracts of employment expired. The notice of termination of employment issued to them on 31 July 2019 is consistent with such an eventuality, considering the clear content of that notice that the termination of employment came about on the basis of ‘end of contract’. For this reason alone, the applicants’ review application must fail, as the CCMA, and consequently also the first respondent, would have no jurisdiction to entertain the dispute, no matter what the alleged reason for dismissal may be, for the simple reason that there was no dismissal.[20] As held in Mnguti v Commission for Conciliation, Mediation and Arbitration and Others[21]:

‘The issue whether or not a dismissal exists concerns the jurisdiction of the CCMA. If there is no dismissal, then the CCMA has no jurisdiction to entertain an unfair dismissal claim …’

[38] The only way in which the CCMA would have had jurisdiction to entertain the applicants’ unfair dismissal dispute in the case where their fixed term contract of employment had expired, would have been to pursue a dismissal dispute as contemplated by section 186(1)(b) of the LRA, as discussed above. They never did so. It is clear from all the referral documents and the contentions of the applicants in the CCMA that the basis for their referral as a dismissal as contemplated by section 186(1)(a) of the LRA, for reasons unknown. The concepts of reasonable expectation of renewal of a fixed term contract or reasonable expectation of indefinite employment simply do not arise in casu, and was certainly never raised. Those concepts in any event are only applicable to an unfair dismissal dispute as contemplated by section 186(1)(b) of the LRA, which, as said above, was never before the first respondent to decide. And the applicants cannot rely on section 198B as read with section 198D, because that very issue has been dealt with and disposed of.

[39] But even if it is considered that the individual applicants were indeed dismissed on 31 July 2019, I have little hesitation in agreeing with the first respondent that the true and / or real reason for such dismissal could only be one related to the third respondent’s

operational requirements. Even though the LRA allows for the referral of a dispute to the CCMA or applicable bargaining council for arbitration where the employee ‘does not know’ the reason for dismissal,[22] it would always be subject to an arbitrator determining the true or real reason for dismissal. It is trite that jurisdiction is

determined on the case as pleaded,[23] but in the context of dispute resolution in the CCMA, where there are no true pleadings to speak of, it is not unusual that the true or real reason for the dismissal of an employee may only emerge once evidence is presented in the arbitration.[24]

[40] It is trite that once it is undisputed that an employee has been dismissed, the onus would be on the employer to prove that dismissal is fair.[25] The employer is however only able to prove a fair dismissal based on one of three reasons, being misconduct, incapacity or operational

requirements.[26] It follows that in arbitration proceedings placed before an arbitrator by an employee on the basis of reasons unknown, the true

issue in dispute will emerge from the basis on which the employer seeks to establish that the dismissal it is fair. In September and Others v CMI Business Enterprise CC[27] it was said that: ‘In my view, the commissioner is not bound by a party’s categorisation of the nature of the dispute. Rule 15 clearly intended

the commissioner to have the right and power to investigate and identify the true nature of the dispute.’ Having so said, the Court then concluded:[28]

‘… The general rule is that the referral form and certificate of outcome constitute prima facie evidence of the nature of the dispute conciliated. However, if it is alleged that the nature of the dispute is in fact different from that reflected on such documents, the parties may adduce evidence as to the nature of the dispute.’

[41] To illustrate the point by example, the employer summarily dismisses the employee without giving the employee any reason for the dismissal. The employee pursues an unfair dismissal dispute to the CCMA on the basis of reasons unknown. In the arbitration, the employer presents evidence that it summarily dismissed the employee because he stole. That would be a dismissal for misconduct. The fact that the employer did not have a disciplinary hearing may mean that the dismissal could be procedurally unfair, but that does not change that the reason for the dismissal was misconduct. If the arbitrator does not accept the evidence that the employee stole, it simply means that the employer was unable to substantiate its case that the dismissal of the employee for misconduct was fair, however this would equally not change the nature of the dispute as being one of a dismissal for misconduct.

[42] So, and in short, any characterization of the dispute by the applicants in the referral documents in casu is simply a prima facie basis of placing the dispute before an arbitrator of the CCMA to arbitrate. Also, the certificate of failure to settle also cannot

determine jurisdiction, as it is not a ruling and simply indicates the dispute is unresolved.[29] The true nature of the reason for dismissal is determined on the basis of the facts placed before the first respondent.

[43] What was then before the first respondent, on the undisputed or undeniable facts? First, there was the issue that the individual applicants were employed on Project Santa Claus which ended on 31 July 2019, and as a result, the third respondent no longer required their services. Second, the individual applicants had been issued with a section 189(3) notice along with all the other employees and unions and this notice covered the eventuality of the termination of employment of the individual applicants. Third, there was the arbitration award of arbitrator Lerumo which was still extant at the time, and in terms of which the individual applicants were permanent employees, meaning that if the third respondent dismissed them because it no longer needed them, it could only be for operational requirements.[30] Fourth, the third respondent presented evidence on affidavit that the reason for dismissal would be for its operational requirements, which was not contradicted by the individual applicants by any form of evidence. Fifth, and although the applicants said that they did not know why they were dismissed, they simply presented no alternative reason why they would have been dismissed. And finally, the individual applicants were paid severance pay, which in only applicable in the case of a dismissal for operational requirmenrnts.[31] It follows that there can be little doubt, on the facts, that the reason for the dismissal of the individual applicants by the third respondent was for operational requirements.

[44] Using once again illustration by example, the facts of this case itself serves as an excellent example of how the true reason for dismissal is established. Accepting for the moment that the first respondent was wrong in not allowing arbitration on the merits to continue. What would then have happened? Well, firstly, dismissal would be common cause, as there was no doubt that the individual applicants were issued with notices of termination of employment on 31 July 2019. This would mean the third respondent had to prove why these dismissals were fair. And in doing so, it would present its evidence that the individual applicants were employed on Project Santa Claus which came to an end on 31 July 2019, it consequently no longer needed them, and that is why they were dismissed. In contradiction to this case, the applicants would say they do not really know why they were dismissed, but they had nothing to gainsay the reason provided by the third respondent. This all being so, and in order for the first respondent to decide if the dismissal of the individual applicants was fair on the basis put forward by the third respondent, he would have to assess whether this rationale and then selection of the individual applicants for dismissal was fair, which is something he simply had no jurisdiction

to determine, as it is undoubtedly an issue relating to the operational requirements of the third respondent. It follows that at

that point, he would still have to decline jurisdiction, and direct that the matter be placed before the Labour Court.

[45] The applicants suggested that when it gave notice to the CCMA on 25 July 2019 that it withdrew the facilitated consultation process at the CCMA, the third respondent abandoned the retrenchment and could no longer rely on operational requirements. I cannot agree with this proposition. It is clear that all the third respondent did was to withdraw facilitated consultation under the auspices of the CCMA. It never withdrew the actual section 189(3) notice issued on 2 July 2019. It appears that the third respondent believed that it could conclude its retrenchment process without the need for facilitated consultation. Whether it was right or wrong in

doing so is beside the point, because if this approach was a mistake, it would render the retrenchment unfair, however this will not change the fact that it is still a retrenchment in the first place. There is accordingly no substance in this contention by the applicants.

[46] I do not understand why the applicants chose to challenge the jurisdictional ruling of the third respondent on review. All they needed to do was just to refer the dispute to the Labour Court for adjudication, which forum undeniably would have had jurisdiction, and the matter would have been decided on the merits long ago. They could raise the very issue of the third respondent’s withdrawal from the facilitated consultation as a ground of unfairness before the Labour Court. There is nothing that the applicants could achieve in arbitration they could not achieve in the Labour Court. They should have appreciated that even if they were successful on review, all that would happen is that the dispute would be referred back to the CCMA, where arbitration could only yield, if

the applicants were successful, the exact same result adjudication in the Labour Court would have yielded. And even better still, a Labour Court judgment is not open to review, as a CCMA arbitrator’s award in their favour would be. Sometimes, surely, common sense must prevail, and this seems absent in the decision making of the applicants in casu.

Conclusion

[47] For all the reasons as set out above, the first respondent’s jurisdictional ruling is simply unassailable on review. It is a ruling that is correct, considering the facts, and the relevant principles of law. Adopting the approach of a determination de novo, there would be two reasons why the CCMA, and consequently also the first respondent, would have no jurisdiction to entertain the

applicants’ unfair dismissal dispute. The first reason is that following all the earlier litigation referred to above, the

applicants cannot rely on section 198B of the LRA and consequently their basis of employment remains that of fixed term contract

employees whose employment simply expired on 31 July 2019 when their contract term ended, meaning they were not dismissed. Secondly, and even if the individual applicants were dismissed, it is clear that the true or real reason for their dismissal, on the facts, is that of a dismissal for operational requirements and considering the numbers (as the first respondent correctly said) the CCMA had no arbitration jurisdiction, and only the Labour Court could adjudicate the same. The applicants’ review application accordingly falls to be dismissed.

Costs

[48] This then only leaves the issue of costs. In terms of section 162(1) of the LRA, I have a wide discretion where it comes to the issue of costs. Even though the applicants were not successful, this was certainly an arguable case which had some novelty attached to it. I do not think any of the parties acted unreasonably in seeking to pursue this matter to finality, and in any event, jurisdiction is an issue that called for final determination by this Court. I also consider the dictum of the Constitutional Court in Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others[32] and Zungu v Premier of the Province of Kwa-Zulu Natal and Others[33] where it comes to costs awards in employment disputes before this Court, and in this case there certainly exists no reason to depart from the principle set out therein. Therefore, I consider it to be in the interest of fairness that no costs order should be made.

[49] In the premises, I make the following order:

Order

1. The late filing of the applicant’s review application is condoned.

2. The applicants’ review application is dismissed.

3. There is no order as to costs.

S Snyman

Acting Judge of the Labour Court of South Africa

Appearances: For the Applicants: Advocate M D Maluleke with Advocate S M Sebola Instructed by: Sebola Nchupetsang Sebola Inc Attorneys For the Third Respondent: Advocate H C Nieuwoudt Instructed by: Norton Rose Fulbright SA Inc Attorneys

[1] Act 66 of 1995 (as amended).

[2] 1962 (4) SA 531 (A) at 532C-E.

[3] See Moila v Shai No and Others (2007) 28 ILJ 1028 (LAC) at para 34; Colett v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1948 (LAC) at para 38.

[4] In Transport and General Workers Union and Others v Hiemstra NO and Another (1998) 19 ILJ 1598 (LC) at para 7 it was held: ‘… I would be unduly shortsighted to fail to acknowledge that it is a norm of South African society that during the period mid-December to early January the nation slouches to a near halt. This customary annual shutdown may not have excused the appropriate degree of expedition in a matter which was truly urgent but it can hardly be said that the nature of this matter was one in which it was inexcusable not to disturb our collective slumber …’. See also Baur Research CC v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1528 (LC) at para 3.

[5] (2008) 29 ILJ 964 (LAC) at para 101.

[6] (2007) 28 ILJ 2405 (CC).

[7] See Trio Glass t/a The Glass Group v Molapo NO and Others (2013) 34 ILJ 2662 (LC) at para 22.

[8] (2008) 29 ILJ 2218 (LAC) at para 40.

[9] Section 191(5)(b)(ii) reads: ‘If a council or a commissioner has certified that the dispute remains unresolved … the employee may

refer the dispute to the Labour Court for adjudication if the employee has alleged that the reason for dismissal is

… based on the employer's operational requirements …’

[10] Section 191(12) reads: ‘An employee who is dismissed by reason of the employer's operational requirements may elect to refer the dispute either to arbitration or to the Labour Court if- (a) the employer followed a consultation procedure that applied to that employee only, irrespective of whether that procedure complied with section 189; (b) the employer's operational requirements lead to the dismissal of that employee only; or (c) the employer employs less than ten employees, irrespective of the number of employees who are dismissed’.

[11] In Enforce Security Group v Fikile and Others (2017) 38 ILJ 1041 (LAC) at para 18, it was held that: ‘… Once the event agreed to between an employer and its employee takes place or materialises, there would ordinarily be no dismissal. It has been the position in common law that the expiry of a fixed-term contract of employment does not constitute termination of the contract by any of the parties. It constituted an automatic termination of the contract by operation of law and not a dismissal …’. See also Sindane v Prestige Cleaning Services (2010) 31 ILJ 733 (LC) at para 16; Nongcantsi v Mnquma Local Municipality and Others (2017) 38 ILJ 595 (LAC) at para 36.

[12] (2021) 42 ILJ 377 (LC) at para 14. See also Commission for Conciliation, Mediation and Arbitration v Commission Staff Association and Others (2020) 41 ILJ 145 (LAC) at para 40, where it was said: ‘… Section 198B does not outlaw fixed-term contracts, or seek to replace them entirely with contracts of indefinite duration. Instead it acknowledges the need for such contracts and seeks to regulate them and to protect vulnerable employees that are often exploited through the means of such contracts, in a manner that is fair’. This was also affirmed in National Union of Metalworkers of South Africa obo Members v Transnet SOC Ltd and others [2018] 5 BLLR 488 (LAC) at para 23.

[13] Section 198B was introduced by way of the Labour Relations Amendment Act 6 of 2014, effective 1 January 2015.

[14] The section reads: ‘’Dismissal’ means that … (b) 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 …’.

[15] For these requirements 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 26 where the Court said: ‘The test whether or not an employee has discharged the onus is objective, namely, whether a reasonable employee would, in the

circumstances prevailing at the time, have expected the employer to renew his or her fixed-term contract on the same or similar

conditions’. The Court added the following at para 29: ‘… it is first necessary to determine whether she in fact expected her contract to be renewed, which is the subjective element. Secondly,

if she did have such an expectation, whether taking into account all the facts, that expectation was reasonable, which is the objective element. Whether or not her expectation was reasonable will depend on whether it was actually and genuinely entertained …’

[16] (2012) 33 ILJ 183 (LAC) at para 18.

[17] (2021) 42 ILJ 411 (LC).

[18] (2022) 43 ILJ 600 (LAC).

[19] Id at paras 36 – 37.

[20] See De Milander (supra) at para 24; Asara Wine Estate and Hotel (Pty) Ltd v Van Rooyen and Others (2012) 33 ILJ 363 (LC) at para 23; Hickman v Tsatsimpe NO and Others (2012) 33 ILJ 1179 (LC) at para 10; Protect a Partner (Pty) Ltd v Machaba-Abiodun and Others (2013) 34 ILJ 392 (LC) at paras 5–6; Gubevu Security Group (Pty) Ltd v Ruggiero NO and Others (2012) 33 ILJ 1171 (LC) at para 14; Workforce Group (Pty) Ltd v CCMA and Others (2012) 33 ILJ 738 (LC) at para 2; Stars Away International Airlines (Pty) Ltd t/a Stars Away Aviation v Thee NO and Others (2013) 34 ILJ 1272 (LC) at para 21

[21] (2015) 36 ILJ 3111 (LC) at para 14.

[22] See section 191(5)(a)(iii) of the LRA.

[23] See Gcaba v Minister for Safety and Security and Others (2010) 31 ILJ 296 (CC) at para 75; Mbatha v University of Zululand (2014) 35 ILJ 349 (CC) at para 157; Ekurhuleni Metropolitan Municipality v SA Municipal Workers Union on behalf of Members (2015) 36 ILJ 624 (LAC) at para 21; Moodley v Department of National Treasury and Others (2017) 38 ILJ 1098 (LAC) at para 37.

[24] See Commercial Workers Union of SA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at para 65; Hotbake Systems (Pty) Ltd t/a the Rich Corporation of SA v Commission for Conciliation, Mediation and Arbitration and Others (2019) 40 ILJ 1516 (LAC) at para 21. See also Health and Other Services Personnel Trade Union of SA on behalf of Tshambi v Department of Health, Kwazulu-Natal (2016) 37 ILJ 1839 (LAC) at para 16; National Union of Metalworkers of SA on behalf of Sinuko v Powertech Transformers (DPM) and Others (2014) 35 ILJ 954 (LAC) at para 17; Pikitup (SOC) Ltd v SA Municipal Workers Union on behalf of Members and Others (2014) 35 ILJ 983 (LAC) at para 47.

[25] See section 192(2) of the LRA.

[26] Section 188(1) of the LRA reads: ‘A dismissal that is not automatically unfair, is unfair if the employer fails to prove- (a) that the reason for dismissal is a fair reason- (i) related to the employee's conduct or capacity; or (ii) based on the employer's operational requirements; and (b) that the dismissal was effected in accordance with a fair procedure’.

[27] (2018) 39 ILJ 987 (CC) at para 43.

[28] Id at para 52.

[29] See Bombardier Transportation (Pty) Ltd v Mtiya NO and Others (2010) 31 ILJ 2065 (LC) at para 14. See also Mbele and Others v Chainpack (Pty) Ltd and Others (2016) 37 ILJ 2107 (LC) at paras 31 – 32; Cook4life CC v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 2018 (LC) at paras 8 – 9.

[30] Compare Mahlamu v Commission for Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 1122 (LC) at para 25; SA Transport and Allied Workers Union on behalf of Dube and Others v Fidelity Supercare Cleaning Services Group (Pty) Ltd (2015) 36 ILJ 1923 (LC) at para 60.

[31] See section 41 of the Basic Conditions of Employment Act 75 of 1997 (as amended).

[32] (2021) 42 ILJ 2371 (CC) at para 35.

[33] (2018) 39 ILJ 523 (CC) at para 25.