Pikitup Johannesburg SOC Ltd v Wabile NO and Others (JR2546/13) [2016] ZALCJHB 479 (18 May 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

case no: JR 2546/13

In the matter between:

PIKITUP JOHANNESBURG SOC LTD

APPLICANT

and

COMMISSIONER K WABILE N.O.

1st RESPONDENT

CCMA

2ND RESPONDENT

NEVILLE SMITH

3RD RESPONDENT

Date of ruling: 18 May 2016 (in Chambers)

RULING: APPLICATION FOR LEAVE TO APPEAL

VAN NIEKERK J

[1] The applicant, the third respondent in the main application (Smith), applies for leave to appeal against the whole of the judgment of this court, delivered on 17 March 2016. In the judgment, the court upheld an application to review and set aside an arbitration award issued by the first respondent (the arbitrator) in which he found that Smith had established the existence of a dismissal and that his dismissal was unfair. The arbitrator went on to make an award of compensation.

[2] The reasons for setting aside the arbitrator’s award are recorded in the judgment, and I do not intend to repeat them here. The first submission made in the present application appears to concern a contention made by Smith that his contract of employment

had been tampered by unknown persons with post-signature, and that the court erred by failing to determine whether in fact the agreement had been tampered with. Had the court done so, Smith contends, the court would have found that the original document contained a clause stipulating that renewal of the contract was subject to performance and that Smith had a reasonable expectation of renewal based on his own good performance.

[3] The difficulty with this contention is that the arbitrator dismissed Smith’s claims in this regard. Neither Smith nor the applicant in the main application (Pikitup) sought to challenge this finding. Specifically, Smith did not seek to challenge this finding by way of counter review. What Smith now seeks to do is to resurrect this argument on appeal. This is wholly impermissible. An appeal does not constitute an entire rehearing of the matter – the parties are bound to the grounds on which leave to appeal was sought. Where an issue such as the authenticity of the contract is not disputed in the court a quo, it can hardly be appealable. In any event, an application for review does not entail an investigation into every aspect of the award under review. The grounds for review must be pleaded in the founding papers and must be contained in the review application. What Smith seeks to do in the present application is to raise what in essence is a ground for review for the first time, in circumstances where he elected not to challenge the arbitration award.

[4] The second ground for appeal is an extension of the first. Smith contends, in effect, that the terms of his contract contained a provision to the effect that it would be renewed if he performed well. Smith contends that the court heard by failing to have regard to the true nature of the employment relationship between the parties, and by having regard only to the contents of the written document. Had the court adopted a broader enquiry, so the submission goes, the court would have found that Smith had a reasonable expectation of renewal based on his own good performance.

[5] The difficulty with the submission of course is that of the terms of the agreement contain no undertaking such as that referred to by Smith. On the contrary, the terms of the contract provide expressly that there was to be no guarantee of extension and that no expectation would be created by any extension, and that that performance would be regulated in terms of a separate performance

management agreement. The submission now made is one to the effect that Smith was contractually entitled to remain in employment, a fact that Smith was unable to prove in the arbitration hearing.

[6] The third ground of appeal relates to the court’s finding that the letter of non-renewal dated 9 November 2012 negated any expectation of renewal that Smith may have had. Smith submits that reasonable notice of non-renewal of a fixed term contract cannot negate any expectation of renewal and specifically, that the court is in finding that three months’ notice of non-renewal was sufficient to negate any reasonable expectation.

[7] The submission is based on the premise that Smith established the contract on terms to the effect that his employment would be extended if his performance was satisfactory – this he failed to do. In any event, Smith’sconduct indicates that he never held an expectation of renewal. This matter is apparent from the evidence relating to Smith’s response to the communication of the six-month extension of his contract, his interactions with the chief executive officer, his awareness of the restructuring of the organisation that was underway (in terms of which he is position would become obsolete) and his failure at the time to object to the termination notice or to question its terms. All of these issues are dealt with in the judgement as is the relevance of the so-called Boya report on which Smith placed great store. All of the evidence that served before the arbitrator indicates that Smith’s claim was an afterthought, which he sought to bolster by any possible means, including reliance on the Boya report (the existence of which Smith was unaware at the time he contends that his expectation of renewal arose) and the alleged but entirely unproved ‘tampering’ with his contract.

[8] In my view, there are no prospects that another court would come to a different conclusion and all of the other applicable factors (public interest, novelty or controversy in the law) further weigh against the granting of leave to appeal.

I make the following order:

1. The application for leave to appeal was dismissed, with costs.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT