Mohajane v Emfuleni Local Municipality and Others (JR 338/20) [2022] ZALCJHB 32 (16 February 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 338/20

In the matter between:

POTSO MOHAJANE

Applicant

and

EMFULENI LOCAL MUNICIPALITY

First Respondent

THE SALGBC Second Respondent

COMMISSIONER LEGODI MILDRED N. O Third Respondent

Heard: 03 February 2022

Delivered: 16 February 2022

Summary: Unopposed review – failure to extent a fixed term contract of employment. Continuation of employment relationship beyond the expiry of a contract of employment does not suggest that the employment relationship has been extended and or made permanent.

The applicant has not been dismissed – the fixed term contract ended – the bargaining council lacked jurisdiction over the dispute.

Held: (1) The review application is dismissed. Held: (2) There is no order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] This application is unopposed. When the matter was called, counsel for the applicant handed up a draft order where by consent between the parties, the award of Commissioner Legodi Mildred was to be reviewed and set aside. The dispute was to be remitted back for a rehearing. This Court brought to attention of both counsel the

decision of this Court in Popcru obo Cindi v The GPSSBC and others[1]. After hearing submissions from the applicant’s counsel, he resolved that submissions would be made to persuade this Court to review and set aside the impugned arbitration award. Submissions were duly made. The applicant’s counsel was afforded a further opportunity to address the Court on a recent Labour Appeal Court (LAC) judgment, which was brought to his attention. Judgment on the matter was reserved.

Background facts

[2] Ms Potso Mohajane (Mohajane) commenced employment with Emfuleni Local Municipality (Emfuleni) on 1 March 2012. Her employment was fixed for a period of five years. Her end date was 28 February 2017. Despite the end date, Mohajane continued to receive remuneration until 30 July 2017. On her version she presented to the commissioner at the bargaining council, the COO of Emfuleni indicated that given the performance, he was considering to write a report to cancel all contract positions and convert them into permanent positions for reasons of stability and continuity.

[3] After February 2017, she continued to receive a salary although she was according to her placed on suspension from March 2017 due to allegations of misconduct. Nobody had informed her that her contract

was terminated. She did not receive any salary in July 2017. What came to her mind as a result of not being paid in July was that she might have been terminated due to the allegations of misconduct. The Municipal Manager had engaged her prior to end of her contract in February 2017 that he intended to make her permanent. Later on, the COO informed her that the council of Emfuleni was still to resolve whether to create positions and convert the contracts into being permanent. She then left the matter at that point.

[4] In due course, she referred a dispute to the bargaining council and alleged unfair dismissal. She alleged that Emfuleni extended the contracts of other employees and disregarded her. Conciliation failed to resolve the dispute. She requested resolution through arbitration. At arbitration Mr Petlane, her counsel in the present application,

ably represented Mohajane. In outlining her case he stated the following:

“APPLICANT REP ADDRESSES HEARING: Thank you Commissioner. Commissioner, the Applicants claim is in terms of [Section 196 (1) (B)] of the Labour Relations Act. In this case, Commissioner the Applicant was hired with four other Colleagues at Emfuleni…The others as we speak today are in the employ of the Respondent. They were hired on a fixed term contract, which is true. The contract was renewed and they were ending in June two-years ago and they were renewed for a further period of three months, and for the others they are renewed for a further two years…Our claim is that by renewing the others, and not renewing that of the Applicant, the Applicant has been dismissed is seeking a

reinstatement. That is our case, Madam Commissioner. Other than that Commissioner to the extent necessary, we will lead evidence that all of them were promised a renewal and it is only the Applicant that was not renewed. In short, that is our case, Madam Commissioner.”

[5] After hearing evidence from both parties, the impugned award was issued.

Grounds of review

[6] Mohajane presented three grounds of review; namely (a) the commissioner committed misconduct in relation to her duties as an arbitrator, because the commissioner misdirected herself in that there was no explanation why Mohajane continued to work beyond 28 February 2017; (b) the commissioner exceeded her powers alternatively issued an improper arbitration award; and (c) the commissioner exceeded her powers or the arbitration award was improperly obtained.

Evaluation

[7] The fact whether an employee has been dismissed or not goes to jurisdiction. The applicable test on review is that of correctness. Mohajane seem to take a view that since she continued to remain on the payroll beyond the expiry of her fixed term contract of employment, her employment relationship could not end. In other words, she becomes a permanent employee. The commissioner concluded that Mohajane failed to bring herself with the dismissal meaning in section 186 (1) (b) of the LRA.

[8] Section 186 (1) (b) provides that it is dismissal when 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 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.

[9] In casu, it is admitted by Mohajane that on 28 February 2017, the fixed-term employment contract ended due to effluxion of time. That being the case, Emfuleni did not dismiss Mohajane. The LAC in Gauteng Provincial Legislature v CCMA and others[2] clarified the law as follows:

“[41] An employee is not employed permanently and on a fixed-term basis at the same time by the same employer. It is either one of the other. An employee, who is in permanent, or indefinite, employment at the time of his or her dismissal, does not have an expectation that his employment is going to be converted into permanent or indefinite employment, as envisaged in section 186(1) (b), as that expectation is already met.

[10] Mohajane contended that she had an expectation that her contract, which had expired, will be extended like the one of the others. This expectation cannot be a reasonable one when in her own testimony, when her salary was stopped in July 2017; she thought it is connected to the misconduct as she probably considered herself to be permanently employed. Her testimony was as follows:

APPLICANT REP: All right, now during that period as you stated earlier you were in the middle of a disciplinary process.

MR MOHAJANE: Yes

APPLICANT REP: When they terminated what came into your mind?

MR MOHAJANE: When I saw my salary not coming in I then thought maybe they had terminated my services because of the allegations of the misconduct that was put against me.

MR DUBE: When 28 February 2017 came into effect what came into your mind?

MR MOHAJANE: Expecting the contract to end.

[11] The Labour Court per my sister Prinsloo J in Hlungwani v CCMA and others[3] followed the Gauteng Legislature decision. This Court afforded the applicant’s counsel to make further submissions, regard being had to the Gauteng Legislature judgment. Written submissions were received on 14 February 2022. The applicant’s counsel contends that the Gauteng Legislature judgment is distinguishable. It is submitted that Mohajane entered into a new oral employment agreement. This submission is at odds with the case of expectation. Based on the Gauteng Legislature judgment, Mohajane cannot have an expectation when, on her contention she was made permanent by allowing her to work for a further four months. The decision of Department of Agriculture Forestry and Fisheries v Teto and others[4] is not authority for the proposition that continuation in employment amounts to an expectation for converting a fixed-term contract into permanent employment. What Teto endorsed was the view expressed by the learned author Grogan and approved by the Labour Court in Owen & others v Department of Health, KwaZulu-Natal[5].

[12] The proposition by Grogan was to the effect that if an employer permits the employee to continue working after date on which the contract would otherwise expire, the contract will be deemed to have been tacitly renewed on the same terms, except that the contractual relationship is now of indefinite duration. Once this happens, the only way in which the contract can be terminated is by ordinary dismissal. As pointed out by Gauteng Legislature an employee is on either a fixed term contract or permanent. If dismissed when a tacit agreement exists, then the route is one of ordinary dismissal and not some expectation. In casu, Mohajane suggested that she expected extension and not that she was tacitly

employed.

[13] The conclusion I reach is that the fact that Mohajane was paid for four months, whilst she was on suspension since February 2017 does not imply that an expectation was created that the fixed-term contract will be extended or that she be made permanent within the contemplation of section 186 (2) of the LRA. If anything, as she suspected when she was not paid in July, she must have at the very least expected a dismissal due to misconduct. An employee who is facing misconduct allegations cannot harbour any expectation of renewal of a contract of employment.

[14] Accordingly, the commissioner was correct that Mohajane failed to make out a case for reasonable expectation. The arbitration award she issued is correct in law and unassailable.

Conclusion

[15] In summary, the commissioner did not commit any misconduct nor exceed her powers. The bargaining council on the objective facts lacked jurisdiction since Mohajane was not dismissed.

[16] In the result the following order is made:

Order

1. The application for review is dismissed.

2. There is no order as to costs.

_______________________

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Mr M Petlane

Instructed by:

Mudzusi Molobela Inc, Vereeniging.

[1] (JR1512/15) delivered on 2 June 2021 marked reportable.

[2] (JA87/2020) dated (25 November 2021).

[3] (JR1492/17) dated 4 February 2022.

[4] [2020] 41 ILJ 2086 (LAC).

[5] [2009] 30 ILJ 2461 (LC).