Association of Mineworkers and Construction Workers Union (AMCU) v Commission for Conciliation, Mediation and Arbitration and Others (JR1616/21) [2024] ZALCJHB 526 (17 September 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR1616/21

In the matter between:

ASSOCIATION OF MINEWORKERS AND

CONSTRUCTION WORKERS UNION (AMCU) Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

First Respondent

MARTIN RABIE N.O.

Second Respondent

SEDIBENG IRON ORE

Third Respondent

Heard: 8 August 2024

Delivered: 17 September 2024 (This judgment was handed down electronically by circulation to the parties’ legal

representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 10h00 on 17 September 2024.)

JUDGMENT

PHEHANE, J

Introduction

[1] This is an opposed review application in terms of section 145 of the Labour Relations Act[1] (LRA) in which the applicant seeks to review and set aside the arbitration award by the second respondent.

[2] In his arbitration award, the second respondent found that the applicant member, Mr. Makaringe, failed to prove that the respondent created a reasonable expectation to retain him on a permanent basis and therefore found that the applicant was not dismissed as his contract of employment came to an end by operation of the law. In the circumstances, the second respondent dismissed the applicant’s referral to the first respondent.

Preliminary issue raised by the Court

[3] In paragraph 6.4 of the answering affidavit,[2] the third respondent suggests that the applicant filed the record late. The third respondent did not take issue with this non-compliance. In paragraph 12 of the replying affidavit,[3] the applicant admits this.

[4] In the circumstances, the parties were directed to clarify whether or not the review application is deemed withdrawn and if so, how the parties intended to proceed with the matter on the date of hearing.

[5] Before the hearing, the applicant’s attorney of record filed a self-explanatory affidavit in which the applicant confirmed that there has been proper compliance with items 11.2.2 read with item 11.2.3 of the now repealed Practice Manual[4] and therefore, the review application is not deemed withdrawn.

Background

[6] Before Mr. Makaringe was employed by the third respondent, he was employed by an entity called 4 Arrows on a permanent basis.

[7] Mr. Makaringe resigned from 4 Arrows on 4 October 2019. He subsequently entered into a fixed term contract of employment with the third respondent. He was appointed in the position of Industrial Relations/Human Resources Manager with effect from 21 October 2019 until 30 September 2020.

[8] Mr. Makaringe received a letter from the third respondent dated 9 September 2020, notifying him that his employment contract expires on 30 September 2020. He signed this letter on 19 September 2020.[5] The said letter reads as follows:

‘REMINDER - END OF FIXED TERM CONTRACT

This letter serves to confirm that your fixed term employment contract signed on 3 October 2019 expires on 30 September 2020. This letter serves as a reminder of the same.

We wish you well in your future endeavours.

May it be known that the undersigned parties, for good consideration, do hereby agree to make the following changes and / or additions that are outlined above.

Sincerely

[signed]

Mr. A Msira

CEO/MD

Mr. JM Makaringe

Accepted’.

[9] Mr. Makaringe left employment in mid-September 2020 and was paid until the end of that month. His employment contract terminated on 30 September 2020.

[10] According to the third respondent, Mr. Makaringe’s employment contract terminated due to the effluxion of time. According to the applicant, Mr. Makaringe had a legitimate expectation that his employment contract would be renewed for an indefinite period. It was not and therefore the applicant contends that Mr. Makaringe was unfairly dismissed as contemplated in section 186(1)(b)(ii) of the LRA.

[11] The applicant subsequently lodged a dispute at the first respondent, the outcome of which is set out above.

Totality of evidence before the second respondent

[12] Four witnesses testified before the second respondent. The following witnesses testified for the applicant: Messrs Makaringe, Chanche Motlale and Gordon Modise. Mrs. Deepa Singh, the Human Resources Manager for the third respondent testified on behalf of the third respondent.

[13] What follows below, is a summary of the totality of the evidence before the second respondent.

[14] Mr. Makaringe’s evidence was that he would not have left permanent employment for fixed-term employment. At his interview, Ms. Singh and Mr. Brian Chirove, the third respondent’s General Manager, promised him that the fixed term position of Human Resources Business Partner that he had applied for would be made permanent. His evidence was that the third respondent had a practice of initially employing individuals on a fixed term basis and later converting them to permanent employees. His evidence was that when he was informed in September 2020 that his contract would be terminating at the end of September, he was distraught and asked for time off in order for him to inform his family. He was given time off and was informed by Mr. Chirove that he need not return to work and needed to hand in his tools of trade. He was somewhat taken aback by this as, according to him, he held the reasonable expectation that his fixed term contract would be renewed for an indefinite period.

[15] In brief, the evidence of Messrs Matlale and Modise is that they too were initially employed on fixed term contracts but both of their contracts were converted to indefinite employment contracts before the expiry of their fixed term agreements.

[16] Ms. Singh denied that she promised Mr. Makaringe that he would be employed on a permanent basis. She further denied that Mr. Chirove would have made such a promise to Mr. Makaringe. Her evidence was that neither she nor Mr. Chirove had the authority to permanently appoint Mr. Makaringe and therefore no such promises could have been made to him. She confirmed that the operations of the third respondent would determine whether or not employees who are initially employed on fixed term contracts would be made permanent and this is what occurred in some instances.

[17] Her evidence was that when Mr. Makaringe was employed, the third respondent was undergoing a restructuring process. This was still the position when his contract terminated and therefore, the operations of the third respondent did not require that his position would be made a permanent position. It is for this reason that his contract terminated on 30 September 2020.

[18] The documents before the second respondent included the advertisement for the position of Human Resources Business Partner for which Mr. Makaringe applied. This position was advertised as a contractual position, along with other positions that were also advertised as contractual positions.[6]

[19] The contract of employment that was concluded between Mr. Makaringe and the third respondent is entitled “Fixed-Term Employment

Contract” and the duration is from 21 October 2019 to 30 September 2020.[7]

[20] Further documents included an increase in the salary of staff, which increases applied across the board, as well as the letter by the third respondent dated 9 September 2020, which reminded Mr. Makaringe that his fixed term contract would expire on 30 September 2020.[8]

Grounds of review

[21] Mr. Cook for the applicant submitted that the correctness and not the reasonableness test is the applicable test in the present case to review the arbitration award, as the issue before the second respondent was whether or not the applicant held a legitimate

expectation that his contract would be renewed as contemplated in section 186(1)(b) of the LRA. Mr Cook referred this Court to the recent decision by the Labour Appeal Court (LAC) in Cape Peninsula University of Technology v Kabengele and Others[9] (Kabengele), where the test in disputes regarding a reasonable expectation of renewal of contract is restated and as Mr. Cook submits, the correctness test is such disputes is confirmed.

[22] It is so that the test in reasonable expectation of renewal of contract is re-stated in Kabengele, and it is this: the onus is on the applicant to prove that he held a reasonable expectation that his contract would be renewed. This required that he put up facts which, objectively considered established such an expectation.[10]

[23] The LAC in Kabengele referred to its earlier decision in SA Rugby Players Association (SARPA) v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v SARPU and Another[11] (SA Rugby) which confirmed the objective test and restated that the enquiry turns on whether a reasonable employee in the circumstances prevailing at the time, would have expected his/her employer to renew his/her fixed term contract on the same or similar terms. In SA Rugby, the LAC found that the rugby players failed to put up facts which objectively considered, established a reasonable expectation that their contracts would be renewed.

[24] In Kabengele however, the LAC cautioned against an overly technical approach to the correctness or reasonableness test, as one test is implicit in the other. In the present case, the founding affidavit sets out in clear terms that the reasonableness of the arbitration award is challenged premised on the provisions of section 145 of the LRA.[12]

[25] The grounds of review are summarised below.

[26] The applicant contends that the second respondent admitted the hearsay evidence of Singh when she testified that neither she nor Mr. Chrove promised Mr. Makaringe during the interview process, that he would be ultimately employed on a permanent basis. Mr. Makaringe contends that the promise that was made to him by Mr. Chirove was during the interview stage during a conversation between the two of them only. In the absence of calling Mr. Chirove, the second respondent committed an irregularity in accepting Ms. Singh’s “say so”.

[27] The applicant contends that the second respondent failed to consider pertinent evidence and by so doing, he committed a gross and reviewable irregularity. In this regard, the applicant contends that the second respondent ignored the evidence before him that, although the advertisement for the position described the position as a fixed term contract of employment, the contract that was concluded between the parties contained several terms and conditions of employment that referred to an indefinite contract: for example, the term of the employees’ sick leave was 36 months, the retirement age was specified as the age of 65 and the notice of termination clause was general (and it appears, in terms of the provisions of section 37 of the Basic Conditions of Employment Act[13]). The applicant contends that the second respondent took a cursory view of this document and had he properly examined it, he would have realised that a fixed term contract was not the true intention of the parties.

[28] Further, that the second respondent failed to apply the law relating to fixed term contracts as he failed to consider the nature of the position in that it could not be one suited to a limited-duration contract. He also failed to consider the probability that Mr. Makaringe would not have left permanent employment at 4 Arrows for fixed-term employment at the third respondent.

[29] The applicant contends that the second respondent was wrong to find that the applicant failed to prove a reasonable expectation that he would be retained in indefinite employment; he incorrectly applied the principles relating to fixed term contracts and the principles relating to the admission of hearsay evidence. In the premises, his decision is unreasonable.

Opposition

[30] The third respondent contends that the arbitration award is reasonable and that there is no basis in law or in fact for this Court to interfere with it.

[31] With respect to the ground of review relating to hearsay evidence, the third respondent contends that the second respondent correctly accepted the version of Ms. Singh above that of Mr. Makaringe. In this regard, the third respondent refers to paragraph 22 of the arbitration award which states as follows:

‘I find the respondents version to be more probable than that of the applicant. Based on the applicants version it was not probable that a promise was made. I say so because the applicant did not do anything to have his conversion to permanency to be affirmed in some concrete manner. If such a promise was made, the applicant could have addressed it to the respondent and a written form to confirm that it was made.'

[32] The third respondent contends that Mr. Makaringe bore the onus to prove that such a promise was made. The evidence of Ms. Singh was uncontested. No challenge of estoppel or ostensible authority was before the second respondent. Therefore, the second respondent was correct to find on the balance of probabilities that neither Ms. Singh nor Mr. Chirove had made the promise to Mr. Makaringe that his contract would be renewed for an indefinite period.

[33] In relation to the ground of review relating to the principles on fixed term contracts, the third respondent contends that the second respondent was not called upon to consider the nature of the job and whether it was justified as a position of limited duration. Further Mr. Makaringe earned above the threshold and the considerations of section 198B of the LRA were inapplicable. Further, there was no reference in the record relating to the IR/ HR position not suited to being a fixed term contract.

[34] In relation to the ground of review that the second respondent did not consider the probabilities, the third respondent contends that Mr. Makaringe is a seasoned human resources practitioner – he considered that the advert did not refer to the position being permanent; his contract of employment was replete with references to its fixed term nature; and he accepted the termination of his employment in the letter dated 9 September 2020. Therefore, on the probabilities, the second respondent’s decision cannot be faulted.

[35] Further, the second respondent accepted the circumstances in terms of which the third respondent converted the employment of fixed term employees to permanent employees. This was not contested by the applicant.

[36] The second respondent further accepted the third respondent’s version that salaries are increased across the board.

[37] The third respondent accordingly contends that the arbitration award is reasonable and the grounds of review lack merit.

Analysis

[38] Test to succeed on review is trite.[14]

[39] On a totality of evidence before the second respondent, Mr. Makaringe applied for a fixed term position and signed a fixed term contract. He agreed in the letter dated 9 September 2020 that his fixed term contract would end on 30 September 2020. Ms Singh denied that both she and Mr. Chirove made a promise to Mr. Makaringe at the start of his employment that he would be made a permanent employee. Messrs Motlala and Modise’s fixed term employment were converted to permanent before their fixed term contracts expiry to due to operational requirements.[15] Mr Modise was an AMCU official – his evidence is that when Mr. Maaringe left work in mid-September 2020, he did not report to the union that his contract was ending.[16] If Mr. Makaringe had an issue with the contract ending and was promised, according to his version, that it would be renewed on a permanent basis, as a seasoned IR/HR Practitioner, he would have taken this up with his union. He did not. Mr. Makaringe signed the termination letter accepting that his contract would terminate on 30 September 2020.

[40] Therefore, on the facts objectively considered, no legitimate expectation of the renewal of his contract on an indefinite basis was established. On the totality of evidence before the second respondent, the arbitration award is reasonable and there is no basis for this Court to interfere with it.

[41] In view of the afore-going, the following order is made:

Order

1. The review application is dismissed.

2. There is no order as to costs.

M.T.M. Phehane

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Adv. A. Cook

Instructed by: LDA Attorneys Inc.

For the third respondent: Mr. B. Abraham of Webber Wentzel Attorneys

[1] Act 66 of 1995, as amended.

[2] p 21.

[3] p 35.

[4] Practice Manual of the Labour Court of South Africa, 2013, repealed by the Rules Regulating the Conduct of the Proceedings of the Labour Court published in GG 50608 of 3 May 2024.

[5] Documents bundle at p 47.

[6] Documents bundle, pp 7 and 22.

[7] Documents bundle, pp 19 to 21.

[8] Documents bundle, p 47.

[9] [2024] 6 BLLR 533 (LAC).

[10] Kabengele at para [17].

[11] [2008] ZALAC 3; [2008] 9 BLLR 845 (LAC).

[12] See: paras 14 and 15 of the founding affidavit at p 7.

[13] Act 75 of 1997.

[14] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; [2007] 12 BLLR 1097 (CC).

[15] See: transcribed record at p 126 and 146.

[16] Transcribed record at p 153.