Maquabayi Construction and Truck Hire (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 102/11) [2013] ZALCJHB 254 (10 October 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG)

JUDGMENT

Not reportable

Not of interest to other judges

Case no: JR102/11

In the matter between:

MAQUABAYI CONSTRUCTION AND TRUCK

HIRE (PTY) LTD ...............................................................................................Applicant

and

THE COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION ......................................................First Respondent

MODIPA, SOLOMON N.O. ............................................................Second Respondent

NUM obo TSAGAE & 10 OTHERS .........................Third to Fourteenth Respondents

HEARD: 12 July 2013

DELIVERED: 10 October 2013

SUMMARY: Fixed duration temporary employment contracts – work of temporary nature – no expectation of employment created – no dismissal proved

___________________________________________________________________

FOURIE, AJ

Introduction

This matter concerns the termination of limited duration contracts upon completion of the required tasks. The Third to Fourteenth Respondents (“the employees”) were employed by the Applicants on limited duration contracts as general labourers on the portion of road works in the Delareyville area. The fixed-term contracts provided that they would terminate on cessation of the work. Their employment commenced during approximately March 2010.

The conditions of the tender which the employer had received from the Department of Transport, required it to employ a certain ratio of its temporary workforce, from the surrounding community. Thus as the roadworks progressed, different temporary workers would be engaged to assist. The extent of the temporary employment (both quantity and duration) was dependent on the completion of certain sections of roadwork, which in turn could be influenced by weather patterns and changes of season.

On 8 June 2010, the employer issued written notices to all of the employees in which it stated that:

‘Due to the work in Delareyville area coming to an end, on approximately 18/06/2010, your services are coming to an end, should the work not be completed on set date, you will be required to continue working until the work has been completed.’

On termination of their employment the employees, assisted by their union, referred a dispute regarding alleged unfair dismissal to the CCMA.

The arbitrator held that as the employees were allowed to work on stretches of the road some 20km outside of the Delareyville area (where they lived), after work in the Delareyville area had been completed, that this in itself created a legitimate expectation on the part of the employees, that they would remain in employment, presumably for the duration of the entire construction project. On the basis of this finding, the arbitrator held that the employees had established a ‘dismissal’, and that their dismissals were unfair. The Arbitrator ordered that the employees be reinstated with 5 months’ back pay.

Review proceedings

In the arbitration and in the review papers the employer challenged the assertion that the employees had been dismissed. The employer’s case has always been that the fixed limited duration contracts of employment terminated on completion of road works in the Delareyville area as contemplated in the contract itself.

Accordingly, the proper test to apply on review is not whether the award was one which a reasonable Arbitrator could have reached, or whether the award is susceptible to review on the grounds listed in Section 145(2) (a) of the LRA, but rather to assess whether, on the objective facts placed before the arbitrator, the employees discharged the onus of proving a dismissal. In this regard, see SA Rugby Players’ Association (SARPA) and Others v SA Rugby (Pty) Ltd and Others; SA Rugby Pty Ltd v SARPU and Another.1

There is nothing inherently objectionable about parties concluding a fixed-term contract of employment, where the actual duration is determined by the completion of specified work. See National Union of Metalworkers of SA and Others v SA Five Engineering (Pty) Ltd and Others2 ; Bottger and Ben Nomoyi Film and Video CC.3

In this matter, it is quite clear that the contracts of employment were for a limited duration, and were never intended to give rise to permanent employment. Credible evidence was presented at the arbitration that the work in the area had largely been completed, and that due to change in seasons it was not possible to perform certain kinds of work. The employees complained that they had been allowed to work in other areas and that people from as far away as KwaZulu-Natal had been employed on the project. In my view, these factors would not give rise to a legitimate expectation of renewed employment. It was clear from the nature of the work itself, and the terms of the temporary employment contracts, that once the work in the area in which the employees lived had come to an end, their employment would terminate. In the nature of things it may well be that certain employees receive termination notices before others, for example if less workers are required due to change of season or change in the work being performed at any given time.

By ordering reinstatement, some 5 months after termination of their employment, the arbitrator in effect directed the employer to take the applicants into service and to employ them regardless of the location or nature of work required. This in effect amounts to rewriting the employment contract, and creating a permanent employment relationship where none previously existed. Clearly this falls well beyond the powers of an arbitrator in statutory arbitration proceedings. In University of Pretoria v Commission for Conciliation, Mediation and Arbitration and Others4 , the Labour Appeal Court held that the expectation of permanent employment cannot be established by virtue of failure to renew a temporary employment contract.

In my view, on the objective facts placed before the arbitrator, the employees were not dismissed. For a discussion of the requirements to succeed in such a claim, see De Milander v Member of the Executive Council for the Department of Finance: Eastern Cape and Others5 .

It is entirely understandable that, given the blight of unemployment in our country, jobless people offered employment will naturally wish to work for as long as possible, and will often litigate in attempt to secure further employment rights. However, arbitrators should be cautious not to stifle innovative job-creation programs by the overzealous application of labour laws to dismissal disputes. It should be borne in mind that the legislature has created a closed list of arbitrable ‘dismissals’, and that even where a dismissal is established, the relief that follows should be fair in the circumstances, and should operate unduly harshly against any party. In the circumstances of this case, to award retrospective reinstatement to persons who were employed on temporary contracts for approximately 4 months, seems excessively unfair to the employer, who has varying employment needs, and who must recruit from local communities in order to meet its tender requirements. This type of arbitration award can only serve to stifle job creation in the long term, and that is not, in my view, a proper exercise of an arbitrator’s discretion as to appropriate relief.

In the exercise of my discretion, I am not inclined to order costs.

Conclusion

In the circumstances, I make the following order:

1. The arbitration award under case number NWKD 2332-10 is reviewed and set aside.

2. The award is replaced with the following:

‘The Applicants have failed to establish the existence of a dismissal. The claim is dismissed.’

3. No order as to costs.

__________________

Fourie, AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant: Attorney D. Morgan

For the respondents: Attorney T. Ramphele

1[2008] ZALAC 3; [2008] 9 BLLR 845 (LAC).

2(2007) 28 ILJ 1290 (LC).

3(1997) 2 LLD 102 (CCMA)

4 [2012] 2 BLLR 164 (LAC)

5(2013) 34 ILJ 1427 (LAC).