Bithrey v Public Health Ad Social Development Sectoral Bargaining Council and Others (JR1478-22) [2024] ZALCJHB 384 (29 September 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1478/22

In the matter between:

SUSARA JOHANNA SUSANNA BITHREY Applicant and PUBLIC HEALTH AD SOCIAL DEVELOPMENT SECTORAL BARGAINING COUNCIL First Respondent LUYANDA OLOTA N.O Second Respondent DEPARTMENT OF HEALTH, GAUTENG Third Respondent

Heard: 02 July 2024

Delivered: 24 September 2024. This judgment was handed down electronically by emailing a copy to the parties. The 24th of September 2024 is deemed to be the date of delivery of this judgment

Summary:

JUDGMENT

MALULEKE AJ

Introduction

[1] This is an application to review and set aside an arbitration award dated 25 May 2022 issued by the Second Respondent under case no: PSHS901-21/22 in which the Second Respondent found that the Applicant failed to establish the existence of a dismissal.

Background facts

[2] The Applicant received a work offer from the Third Respondent on 23 January 2017 in the position of the Registrar, which is a post

profiled for candidates who have shown an interest in specializing within the medical field. The position of a Registrar is a joint

appointment between the Third Respondent and the University of Pretoria wherein the registrars would receive theory at the University and do clinical work at the hospital.

[3] The Applicant accepted the offer in writing on 26 January 2017 and received a formal appointment letter from the Third Respondent which confirmed her employment to commence on 01 of March 2017. The appointment letter stated, inter alia; the following:

“Your appointment and condition of service will be governed by the Public Service Act, 1994, as amended, the Labour Relations Act, 1995, as amended, the Public Finance Management Act, 1999 and the Public Service Regulations, 2016 as amended, Collective Agreements, Occupational Specific Dispensation (OSD) requirements and any present or future amendments to the aforementioned acts, regulations and instructions, including the Code of Conduct of employees in the public service”.

[4] It is undisputed evidence and common cause between the Applicant and the Third Respondent that the appointment offer and/or contract only contain a starting date, being the 01 of March 2017 and does not have an end date. The Applicant registered a five-year programme for MChD (Chir MaxFac-Dent) degree with the University of Pretoria which would only have come to an end on 31 of October 2022.

[5] During December 2019, Professor Sindisiwe Londiwe Shangase while in the employ of the Third Respondent was presented with contracts

and/or submissions signed by her predecessor and upon perusal and consideration of the original contract of the registrars’ post, she discovered that their appointment deviated from the normal training periods that are gazetted and/or as per the Health

Professions Act[1] and according to the Third Respondent this is in contravention of the Health Professions Act and Public Finance Management Act[2] (PFMA) which resulted in her not signing the contracts and/or documents and instead decided to have a consultation with the Third

Respondent’s line managers who indicated that the Third Respondent is only responsible to pay salaries for registrars for the times that are determined on the Health Professions Act which is four years and not five years as it is claimed by the Applicant.

[6] According to the Third Respondent, on 03 June 2021, the Applicant was advised that her training as a Registrar was extended until 31 of December 2021 and this was clear notice informing the Applicant that her Registrars’ post was coming to an end as per the Health Professions Act. Despite that the Letter of Appointment did not have an ending date of the contract, the Third Respondent’s view was that the Applicant’s post would officially terminate by operation of law and more specifically the Health Professions Act.

[7] Further to the above, the Third Respondent in its testimony submitted that it has become clear that previous registrars remained in this post by taking a longer period to complete clinical training, intentional registration for longer periods compared to the Health Professions Act, request unnecessary extensions just to remain in the Third Respondent’s payroll despite rendering noble medical services. Accordingly, in terms of the Health Professions Act and its peremptory requirements, any longer period of registrar contract without approved extension and/or any longer registration in alignment with the University curriculum is a contravention of the purposes of the Health Professions Act and the PFMA.

[8] Based on the abovementioned, the Applicant’s employment was accordingly terminated on the 31 of December 2021 irrespective of the fact that she had not completed her studies with the University at the time as required in terms of the University curriculum which is five years and not four years.

The Award

[9] I do not intend to summarise the award, nor to relate in any detail the evidence before the Second Respondent except where necessary for the purpose of the Judgment, the thrust of the Second Respondent reasoning is set out below:

“36. The Applicant carries a burden to prove that this dismissal existed. The Applicant contention that she was appointed for indefinite period stand to be rejected. A person who is appointed for indefinite period remains in a position until she resigned or dismissed or retire and that is not the case in the registrar’s position. A registrar has to vacate the position after receiving the results or could not pass. The position of registrar is a position given to an incumbent for a purpose of receiving education and training. I therefore rejected the Applicant’s averment that she was appointed permanently as a registrar. The position of registrar is temporal in nature and it is meant to be occupied by a registrar in training, same as the Applicant.

37. The Second argument that was presented by the Applicant was that she has a reasonable expectation that appointment would be terminated upon her resigning or after she obtained her results. The argument is misplaced; such termination clause is neither mentioned in the appointment letter nor it is applicable in law. More so, a dispute about a reasonable expectation is dealt with in terms of Section 186(1)(b) of the Labour Relations Act[3] (“LRA”). Section 186(1)(b) of the LRA states “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 in 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 of the fixed term contract but the employer offered to retain the employee on less favourable terms or did not offer to retain the employee”.

38. The Applicant did not claim she had a reasonable expectation of a renewal of the fixed term contract or to be retained in employment on an indefinite basis. I find that the Applicant’s claim has no legal basis, therefore it is dismissed.

39. On a contrary, I have accepted the undisputed evidence led by Prof Shangase that the Applicant was informed on 03 of June 2020 that a registrar training would be terminated on 31 of December 2021, being the date the Applicant completed a four year in the position. I also considered the undisputed evidence led by the Respondent that the Applicant had met all clinical requirements and she was signed off by the consultant. If the Respondent gives the registrar a financial assistance for a period of four years, if the four years lapsed, the lapsing of the time cannot be regarded as a dismissal”.

[10] Firstly, the reasons of the Second Respondent fail to acknowledge certain crucial factors which are outlined as follows:

10.1 That there is a Letter of Appointment which in itself amount to a contract of employment between the Applicant and the Third Respondent

and in essence such contract governs the relationship between the Applicant and the Third Respondent;

10.2 That the Letter of Appointment did not have an ending date and the Third Respondent was responsible for the preparation and compilation

of such Letter of Appointment;

10.3 That a position of registrar is a joint appointment between the Third Respondent and the University of Pretoria and that in terms of the University of Pretoria’s MCD curriculum students must be enrolled for a period of five years;

10.4 That evidence was led on behalf of the Third Respondent that it was a norm that registrars would complete their training at least within five (5) years as signed and approved by the predecessor to Professor Sindisiwe Londiwe Shangase who after her appointment decided to move away from the norm as it was non-compliant with the Health Professions Act and the PFMA.

[11] Section 186(1)(a) and (b)(i) of the LRA makes reference to meaning of a dismissal and reads as follows:

“(1) Dismissal means that-

(a) an employer has terminated employment with or without notice

(b) an employee employed in terms of a fixed-term contract of employment reasonably expected the employer –

(c) 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…”

Review test and evaluation

[12] The first question is therefore whether the Letter of Appointment on its face value together with the norm that has been created by the Third Respondent from time to time did create a legitimate expectation for the Applicant to believe that she was appointed as registrar for a period of five years and not four years as claimed by the Third Respondent.

[13] The second question before this Court is simply whether the Second Respondent was correct in determining that the Applicant has not been dismissed when the Third Respondent terminated the contract in four years and not in five years as the Applicant reasonably expected.

[14] The applicable test was laid to rest in Jonsson Uniform Solutions (Pty) Ltd v Brown and Others[4] where the Labour Appeal Court held as follows:

“The generally accepted view is that we have a bifurcated review standard viz reasonableness and correctness. The test for the reasonableness

of a decision was stated in Sidumo and another v Rustenburg Platinum Mines Ltd and Others as follows: “Is the decision reached by the Commissioner one that a reasonable decision-maker could not reach”.

[15] Amongst other decisions, this Court notes the decision in Member of the Executive Council for the Department of Finance: Eastern Cape v De Milander and Others[5] where the Labour Court adopted the following approach:

“[32] The onus to prove that the dismissal occurred in circumstances where the employee had a reasonable expectation that the fixed-term contract would be renewed at the end of its period rests with the employee. A dual inquiry is conducted in determining the existence of reasonable expectation. The first inquiry is subjective and entails enquiring into the subjective basis upon which the person who claims reasonable expectation relies in contending that his or her contract ought to have been renewed. The enquiry into reasonable expectation ends if the employee fails to show that he or she had the expectation that the period of the fixed-term contract would be extended. If the employee is successful in showing that he or she had a subjective expectation that the contract would be renewed, then the second enquiry entails determining the existence of such an expectation on the basis of the objective facts that existed prior to the termination of the contract.”

[16] In Joseph v University of Limpopo and Others[6], the Labour Appeal Court (LAC) stated the following:

“[35] The onus is on an employee to prove the existence of a reasonable or legitimate expectation. He or she does so by placing

evidence before an arbitrator that there are circumstances which justify such an expectation. Such circumstances could be, for

instance, the previous regular renewals of his or her contract of employment, provisions of the contract, the nature of the business,

and so forth. The aforesaid is not a closed list. It all depends on the given circumstances and is a question of fact”.

[17] In light of the submissions made by both the Applicant and Third Respondent the following issues are common cause:

17.1 That the position of Registrar is a joint appointment between the Third Respondent and University of Pretoria in terms of which the Applicant would receive theory at the University and do clinical work at the hospital;

17.2 That in line with the University of Pretoria’s curriculum, the Applicant was registered for a period of five years;

17.3 That the Letter of Appointment issued to by the Third Respondent to the Applicant does not have an ending date;

17.4 That it was established norm that registrars would complete their training within five years as signed and approved by the predecessor

to Professor Sindisiwe Londiwe Shangase and it was only after her appointment that the Third Respondent decided to strictly operate in line with the provisions of the Health Professions Act and the PFMA.

[18] Having regard to the abovementioned, this Court is of the view that these circumstances are sufficient to create a legitimate expectation

on the part of the Applicant that the Letter of Appointment issued by the Third Respondent was for a period of five years and not four years as claimed by the Third Respondent.

[19] The principle relating to fixed-term contracts was dealt with in Buthelezi v Municipal Demarcation Board[7] where the LAC emphasized the following:

“The first question that arises in the present matter is whether the Respondent was entitled to terminate the employment contract between it and the appellant when it canceled it. There is no doubt that at common law a party to a fixed-term contract has no right to terminate such contract in the absence of a repudiation or a material breach of the contract by the other party. In other words, there is no right to terminate such contract even on notice unless its terms provide for such termination. The rationale for this is clear. When parties agree that their contract will endure for a certain period as opposed to a contract for an indefinite period, they bind themselves to honour and perform their respective obligations in terms of that contract for the duration of the contract and they plan, as they are entitled to in the light of their agreement, their lives on the basis that the obligations of the contract will be performed for the duration of that contract in the absence of a material breach of the contract. Each party is entitled to expect that the other has carefully looked into the future and has satisfied itself that it can meet its obligations for the entire term in the absence of any material breach. Accordingly, no party is entitled to later seek to escape its obligations in terms of the contract on the basis that its assessment of the future had been erroneous or had overlooked certain things. Under common law there is no right to terminate a fixed-term contract of employment prematurely in the absence of a material breach of such contract by the other party.”

[20] The Third Respondent’s contention that the contract was terminated by operation of law is a mere attempt to avoid taking

responsibility over its poor management of the contract in question. Having said that, it is also of crucial importance to articulate that the Third Respondent was responsible for the drafting and preparation of the Letter of Appointment and/or contract and handed it to the Applicant and therefore the Third Respondent had an obligation to ensure that the Letter of Appointment is clear from any ambiguity whatsoever which it failed to do in the present matter.

[21] Having regard to the principles of law highlighted in different authorities above, this Court is convinced firstly that there was a legitimate expectation created by the Third Respondent, secondly, that by terminating the contract before expiration, the Third

Respondent has dismissed the Applicant which dismissal was procedurally and substantively unfair.

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

Order

1. The Arbitration Award granted by the Second Respondent on the 25 of May 2022 under case number: PSHS901-21/22 is reviewed and set aside;

2. The Third Respondent is directed to compensate the Applicant with 8(eight) months remuneration subject to tax deductions if any payable within 30(thirty) days of receipt of the Court Order into her bank account or in the same manner she was remunerated;

3. There is no order as to costs.

S. Maluleke

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Instructed by Advocate Dirk Groenewald Hurter Spies Inc For the Respondent: Instructed by Advocate Ntsako Mkhari The State Attorney’s office

[1] No. 56 of 1974.

[2] No. 1 of 1999.

[3] No. 66 of 1995.

[4] (2014) JOL 32513 (LAC) at para 33.

[5] (2011) 32 ILJ 2521 (LC) at para 32.

[6] (2011) 32 ILJ 2085 (LAC) at para 35.

[7] [2005] 2 BLLR 115 (LAC) at para 9.