SAMWU obo Moreroa and Others v South African Local Government Bargaining Council and Others ; SAMWU obo Ramatshela v South African Local Government Bargaining Council and Others ; City of Tshwane Metropolitan Municipality v SAMWU obo Phasha and Others (JR1571/18; JR1350/18; JR2890/17) [2022] ZALCJHB 363 (2 December 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR1571/18

In the matter between:

SAMWU OBO MOREROA AND OTHERS Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL First

Respondent

COMMISSIONER MUNYAI N.O. Second

Respondent

THE CITY OF TSHWANE METROPOLITAN

MUNICIPALITY Third

Respondent

Case no: JR1350/18

SAMWU OBO JOHANNES RAMATSHELA Applicant

BARGAINING COUNCIL First

Respondent

COMMISIONER MAREE N.O. Second

Respondent

MUNICIPALITY Third

Respondent

Case no: JR2890/17

MUNICIPALITY Applicant

SAMWU obo PHASHA & OTHERS First

Respondent

BARGAINING COUNCIL Second

Respondent

COMMISSIONER MATLALA N.O. Third

Respondent

Heard: 20 October 2022

Delivered: 2 December 2022

(This judgment was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed 2 December 2022).

Summary: Three review applications consolidated – same legal issue to be determined – Former employees initially signed six month fixed term contracts for the Expanded Public Works Programme (EPWP) which programme had a limited duration. When The former employees’ fixed term contracts were not renewed, they continued working until the EPWP was completed. After the completion of the EPWP, the former employees were issued with termination letters. – Former employees claimed they had been unfairly dismissed based on section 186(1)(a) and (b) of the Labour Relations Act No. 66 of 1995 – Former employees claimed they had been dismissed. – Former employees did not prove they had a reasonable expectation of renewal of their fixed term contracts nor did their employment contracts tacitly convert into permanent contracts for an indefinite duration as a contrary intention can be inferred from the facts. – Bargaining Council had no jurisdiction to determine these matters as there was no dismissals as termination of employment had occurred as a result of the completion of the EPWP.

JUDGMENT

SWARTZ AJ

Introduction

[1] These matters concern three review applications. On 28 January 2021, this Court ordered the consolidation of these review applications. While the legal issues are the same, there are three different arbitration awards that need to be dealt with separately to determine whether such awards stand to be reviewed and set aside. For ease of reference, the matters will be referred to as the Moreroa matter, the Ramatshela matter and the Phasha matter.

[2] At the commencement of this matter, this Court first dealt with a condonation application in the Moreroa matter brought by the former employees. This application was not opposed at the hearing and was granted. Also in this matter, the Municipality of Tshwane (the municipality) brought a point in limine which it abandoned. In the Ramatshela matter, the municipality applied for condonation for the late filing of its answering affidavit despite there being no objection filed for the late filing of the answering affidavit. In thePhasha matter, despite an objection being filed for the late filing of the municipality’s answering affidavit, the applicants abandoned this objection.

[3] These matters concern thousands of former employees of the municipality whose employment terminated during the course of 2017. In all three matters, the municipality contends that these employees were specifically employed during various periods from 2012 on continuous six months fixed term contracts to work on the National Department of Public Works’ (NDPW) programme called the Expanded Public Works Programme (EPWP). The budget for the employees’ salaries was derived from the NDPW. When this programme came to an end in 2017, so too did the employees’ fixed term contracts. Accordingly, the municipality contends that there were no dismissals as the employees’ fixed term contracts had expired and their employment ended by the effluxion of time.

[4] On the other hand, the employees contend that in some instances, the municipality did not renew their fixed term contracts yet they continued working and in other instances, some employees refused to sign further fixed term contracts yet they continued working. In all instances, the employees continued to be employed by the municipality until their employment was terminated at different times during the course of 2017. The employees are claiming that they have been unfairly dismissed as they had a reasonable expectation that they were permanent employees of the municipality in that when no new fixed term contracts were signed, their employment contracts were tacitly converted into permanent employment contracts.

Factual background

[5] In the 2011/2012 financial year, the municipality launched a city cleaning programme named the Vat Alles project which was introduced under the EPWP. The project was aimed at creating employment opportunities for the unemployed. While some employees provided labour-intensive services such as litter picking, others were performing administrative duties for the EPWP.

[6] The municipality has detailed in its papers the legislative framework in which the EPWP came into operation which includes its origins in the Growth and Development Summit of 2003 and the Cabinet endorsing this programme. The special conditions of employment for the EPWP projects included an Implementation Protocol, Guidelines, a Code of

Good Practice for employment and conditions of work for EPWP that was gazetted, a Ministerial Determination and an Institutional

Arrangement Framework.

[7] At the start of their employment, the employees signed six month fixed term employment contracts with the municipality. The material portions of these employment contracts state that:

‘4. Commencement and Duration of Contract

4.1 The employee’s/beneficiaries appointed shall be effective as of date of signature of this contract, or such other date as agreed to the Employer, and shall terminate as at the date of practical completion of the contract work or such other date as may be advised by the employer on writing. The practical completion date of this project has been provisionally set at 30 June 2014 and the employee’s termination will remain as that date unless otherwise informed in writing by the Employer.

…

12. Termination of Employment

12.1 The employee’s/beneficiary’s contract shall terminate as at the project completion date or such alternate date as may be advised in writing by the employer, alternatively the employee’s

/beneficiary’s contract shall immediately terminate in the event of a sanction of a dismissal following disciplinary procedures

to be taken against the employee/beneficiary in the event of any misconduct on the part of the employee/ beneficiary on the grounds as set out further in Clause 12.2 hereof.’

[8] It is common cause that the EPWP and/or the Vat Alles project ended during the course of 2017. From the three arbitration awards, the employees held different jobs which they were all initially contracted for specifically for the EPWP. The EPWP practical completion took place during 2017.

[9] After the municipality terminated the employees’ employment through termination letters, the employees referred unfair dismissal disputes to the South African Local Government Bargaining Council (SALGBC) in three different referrals. All referrals identified the disputes in terms of section 186 of the Labour Relations Act[1] (LRA) and not in terms of section 198B of the LRA.

The Moreroa matter arbitration award

[10] In this matter, the employees are the applicants in the review application. The employees were found not to have been dismissed as their fixed term contracts had expired due to the effluxion of time. The employees challenge this finding.

[11] In 2016, a new administration came into office and insisted that all employees sign new contracts which they refused to do. As a consequence, the municipality stopped paying the employees’ salaries from January to March 2017. The employees approached this Court which granted an order on 14 March 2017 that the municipality pays the employees their salaries in terms of their contracts of employment.

[12] The employees continued to refuse to sign further six month fixed term contracts. However, they continued working at the municipality until the municipality issued these employees termination letters stating that their employment contracts expired on 30 June 2017.

[13] The employees’ payslips all refer to the payment of salaries specifically for the EPWP.

[14] The SALGBC issued an arbitration award dated 30 January 2018 in which it found inter alia that:

14.1 The employees’ fixed term contracts were conditional upon the effluxion of time and were designed to endure until the completion of the project;

14.2 The employees did not establish, on a balance of probabilities, that the circumstances, objectively considered, lead to a conclusion that they reasonably expected the municipality to renew their contracts or employ them on a permanent basis. In the premises, it was found that the employees failed to establish, on the balance of probabilities, that there was a dismissal in terms of section 186(1) of the LRA; and

14.3 There was no dismissal of the employees by the municipality and the unfair dismissal referral by the employees in terms of 186(1)(b) was dismissed.

[15] The employees launched their review application on 3 August 2018. They challenge the arbitration award mainly based on the contention that the commissioner failed to take into account that there were no employment contracts that expired on 30 June 2017 which was the reason for the employees’ termination of employment as contained in the municipality’s letters of termination.

[16] In their founding affidavit, the employees state that after their contracts came to an end and were not renewed, they became permanent employees of the municipality.

[17] The municipality in its answering affidavit states that the employees were appointed on fixed term contracts that were terminated by the effluxion of time when the EPWP programme and/or the Vat Alles project came to an end. Accordingly, there were no dismissals.

The Ramatshla matter arbitration award

[18] In this matter the employees are the applicants in the review application. They are challenging the relief that was granted to them. The employees were found to be unfairly dismissed but reinstatement was not ordered as it was found that the non-compliance with the Local Government: Municipal Systems Act [2] (Municipal Systems Act) rendered reinstatement not reasonably practicable. The employees are challenging the relief that was granted as they seek reinstatement.

[19] The employees were all employed during the years 2012 through to 2015. The employees were initially employed on fixed term contracts of six months and these contracts were continually renewed until 2014.

[20] In 2016, the municipality required the employees to sign new fixed term contracts for the period of January 2017 to June 2019. Some employees signed these new contracts while others chose not to. The salaries of the employees who refused to sign these new contracts were not paid by the municipality which led to this Court’s order of 14 March 2017 as referred to above.

[21] In June 2017, the municipality again required the employees to sign another fixed term contract for the period of 1 July 2017 to 31 December 2017. The municipality terminated the employment of the employees that refused to sign these contracts. Termination of employment took place in October 2017 and like in all three matters, the termination letters indicated that the reason for the employees’ termination of employment was due to the expiry of their fixed term contracts.

[22] The employees contend that as there were no fixed term contracts in place at the time of their termination of employment, the municipality could not have fairly dismissed the employees on the basis of the expiry of their fixed term contracts. The employees at the arbitration argued that the notice of termination of service constituted a dismissal in terms of section 186(1)(a) of the LRA.

[23] The employees testified that they had a reasonable expectation of permanent employment in terms of section 186(1)(b) of the LRA based on the evidence as summarised in the award. [3]

[24] At the arbitration, the municipality contended that the employees would never become part of the municipality’s administration as no such positions were created on the organogram of the municipality as is required in terms of section 66 of the Municipal Systems Act. Section 66 of this Act specifically deals with staff establishments. The municipality further argued that section 198B of the LRA makes specific provisions for these types of atypical employment of employees who earn below the threshold and who work on fixed term contracts or successive fixed term contracts for longer than three months to be justified when they are employed.

[25] The municipality contended that there were no dismissals in that the employees failed to prove that they had a reasonable expectation of permanent employment.

[26] The SALGBC issued an arbitration award dated 20 May 2018 in which it found inter alia that:

26.1 The employees were dismissed within the ambit of section 186(1)(a) of the LRA as at the time of their dismissals there were no longer fixed term contracts in place and their employment was regarded to be on an indefinite basis;

26.2 The dismissals were affected by way of a letter. It is trite that a dismissal can only be fairly done based on misconduct, poor performance/incapacity or operational requirements;

26.3 As the dismissals were based on the failure to sign contracts, it does not fall within any of these three grounds and no procedure was followed. The employees were thus dismissed in circumstances that render it substantively and procedurally unfair; and

26.4 Reinstatement or re-employment cannot be ordered based on section 193(2)(d) of the LRA as the Municipal Systems Act renders such relief not reasonably practicable. Accordingly, the employees were awarded six months’ compensation in terms of section 193(1)(c) read with section 194 of the LRA.

[27] The employees launched their review application on 13 July 2018 and challenged the reasonableness of the relief awarded by the arbitrator. The employees contend that as the commissioner found their dismissals to be substantively unfair, the primary remedy of reinstatement should have been awarded and it was not. The employees contend that the commissioner did not justify why the Municipal Systems Act renders reinstatement impractical which amounts to a gross irregularity.

[28] The municipality in its answering affidavit contends that the employees were appointed on fixed term contracts for the Vat Alles project. In terms of section 198B(4) of the LRA, where an employee may be employed for purposes of an official public works scheme or similar public job creation scheme, the municipality was legally empowered to engage with the employees on fixed term contracts for longer than three months.

[29] To reinstate the employees would not only be a violation of the Municipal Systems Act but would also be incapable of enforcement given that retrospective reinstatement would assume that the Vat Alles project still existed, which it does not.

The Phasha matter arbitration award

[30] In this matter, the municipality is the applicant in the review application. It is challenging the arbitration award dated 30 November 2017 by the SALGBC and varied on 27 June 2018.

[31] The employees were initially employed in 2013 for the EPWP on continuous six month fixed term contracts which expired on 30 June 2014. These employees were employed for the I.D. Campaign which fell under the EPWP. Some employees signed new fixed term contracts which expired on 31 December 2014. The employees continued working for the municipality without signing new fixed term contracts until their employment was terminated on 31 January 2017. The employees contended that, at the time of their termination, they were no longer on fixed term contracts but were permanent employees and their termination constituted a dismissal.

[32] As in the other matters, the municipality contended that the employees were on fixed term contracts for the EPWP and their contracts expired when the project came to an end. Accordingly, there was no dismissal.

[33] The SALGBC issued an arbitration award dated 30 November 2017 in which it found inter alia that:

33.1 The employees were allowed to continue working beyond the expiry of their fixed term contracts, the contracts were tacitly renewed for an indefinite period and as such, they were entitled to the protection provided for by the LRA;

33.2 The reasons provided in the employees’ termination letters in January 2017 was that their fixed term contracts had come to an end. This was an incorrect reason for the dismissal as the employees’ fixed term contracts came to an end on 31 December 2014 and since there were no fixed term contracts in place, the municipality failed to establish any sufficient reason for the dismissal of the employees;

33.3 The employees’ termination on 31 January 2017 constituted a dismissal in terms of section 186(1)(a) of the LRA and there was no fair reason relating to their conduct, capacity or the employer’s operational requirements. There was no fair procedure followed; and

33.4 The employees had established the existence of their dismissal which was substantively and procedurally unfair and the arbitration award ordered that the employees were to be reinstated with backpay of 10 months, on either in the same capacities and on the same terms and conditions of employment as those prevailing at the time of their dismissal.

[34] On 27 June 2018, the SALGBC issued a variation award to rectify the number of employees that were entitled to the relief granted in the arbitration award dated 30 November 2017.

[35] The municipality launched its review application on 15 January 2018 on the grounds that, inter alia the commissioner failed to determine the dispute that was put before him which required him to also consider the provisions of section 198B of the LRA. Further, the commissioner failed to appreciate that the tacit renewal of the contracts should have been on the same terms and conditions as that of the originally agreed expired contracts. Accordingly, the tacit renewal of the contracts should not have been found to be on an indefinite basis but on a fixed term basis in line with the needs of the EPWP.

[36] The municipality also reviews the arbitration award on the basis that the commissioner’s findings flout the recruitment policies of the Municipal Systems Act as the positions that the employees held at the municipality no longer existed as the EPWP had been practically completed.

[37] In its supplementary affidavit, the municipality refers to the evidence of the employees, Ms Makitla and Mr Tlhapi. Both these employees’ evidence, which is supported by the record, indicated that no reasonable expectation of permanent employment could have been expected after the EPWP ended.

[38] In their answering affidavit, the employees contend that the municipality did not deal with the practical completion date of the project, in that the municipality never informed the employees of a date in terms of clause 4.1 of their initial fixed term contracts. There was no contractual compliance by the municipality to terminate the employees’ fixed term contracts. The employees dispute that their letters of termination constitute notice of termination in terms of clause 4.1 of their initial fixed term contracts.

[39] The employees contended that they were permanent employees in that the municipality had tacitly renewed their employment contracts on a permanent basis. There was no dispute referred to in terms of section 198B of the LRA and the commissioner’s non-reliance on this section is not a ground for review.

Reasoning

[40] All three referrals to the SALGBC were not referred under section 198B of the LRA but rather under section 186 of the LRA. The crux of all the disputes focus on whether the employees have a reasonable expectation of permanent employment after their fixed term contracts expired. Section 186(1)(b) provides:

‘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 the 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.’

[41] Section 198B of the LRA regulates fixed term contracts with employees earning below the earnings threshold. Despite the employees not referring their disputes in terms of this section, this section nevertheless has to be considered given that the employees all earned under the threshold. The material subsections of section 198B can be summarised as follows:

41.1 198B (2)(c): This section does not apply to an employee employed in terms of a fixed term contract which is permitted by any statute, sectoral determination or collective agreement. The employees were employed specifically for EPWP and a Code of Good Practice for employment and conditions of work for EPWP was gazetted, as well as a Ministerial Determination. The employees were employed on fixed term contracts permitted by statute and accordingly, section 198B is not applicable;

41.2 198B (3): An employer may employ an employee on a fixed term contract or successive fixed term contracts for longer than three months of employment only if –

‘(a) the nature of the work for which the employee is employed is of a limited or definite duration; or

(b) the employer can demonstrate any other justifiable reason for fixing the term of the contract.’

The nature of the employees’ work was of limited duration in that they were only employed until the EPWP ended and the municipality had a justifiable reason for fixing the term of the contract. Accordingly, this subsection further excludes any reliance by the

employees on section 198B;

41.3 198B(4): Without limiting the generality of subsection (3), the conclusion of a fixed term contract will be justified if the employee –

‘…

(d) is employed to work exclusively on a specific project that has a limited or defined duration; and

(g) is employed for the purpose of an official public works scheme or similar public job creation scheme…’

According to these subsections, the conclusion of a fixed term contract was justified and there can be no reliance by the employees on section 198B of the LRA; and

41.4 198B(5): Employment in terms of a fixed term contract concluded or renewed in contravention of subsection (3) is deemed to be of indefinite duration. This subsection was not relied on by the employees in their referrals to the SALGBC nor is applicable as there was no contravention of subsection (3).

[42] Insofar as the employees argue that there were no fixed term contracts in place at the time of their dismissal and hence they automatically became permanent employees, this issue is dealt with below.

[43] It was common cause that the employees were initially employed by the municipality for the EPWP and that this programme came to an end at various times during 2017. None of the employees had been employed through the process as set out in the Municipal Systems Act.

[44] In the recently reported case of Monareng v Dr J S Moroka Municipality[4], this Court eloquently summated the relevant provisions of the Municipal Systems Act when employment in a municipality is

contemplated and stated that:

‘This Court in Phokwane Local Municipality v Mabusela and others[5] had the following to say:

[12] Lack of authority to contract vitiates a contract. In the local government sphere, the authority to contract is circumscribed by legislation. In terms of s 55(1)(e) of the Local Government: Municipal Systems Act (Systems Act), a municipal manager, subject to the policy directions of the municipal council is responsible and accountable for the appointment of staff. In terms of s 55(2)(c), a municipal manager in his capacity as an accounting officer is responsible and accountable for proper and diligent compliance with the Municipal Finance Management Act [56 of 2003] (MFMA). In terms of s 15 of the MFMA, a municipality may incur an expenditure only in terms of an approved budget and within the limits. In terms of s 16, the municipal council approves budgets. This function is non-delegable in terms of s 160(2)(b) of the Constitution. In terms of s 66(1) of the Systems Act, a municipal manager is obligated to develop a staff establishment acting within the policy framework determined by the municipal council and submit it to the municipal

council for approval.

[13] Regard being had to the provisions of the Systems Act read with the MFMA, it is apparent that the Municipal Manager of a Municipality

does not have unfettered powers to have a changed staff establishment and to incur and attract expenses on behalf of the Municipality.

Phokwane specifically challenged Marima to show that Lenkoe had the power to contract with him over the car allowance.’ (Footnotes

omitted)

[45] It was common cause that the employees were initially employed on fixed term contracts and even after the expiration of their fixed term contracts they were not thereafter employed in terms of the Municipal Systems Act.

[46] All employees initially signed fixed term contracts at the beginning of their employment. The employees were therefore bound by clauses 4.1 and 12 of their initial fixed term contracts.

[47] For ease of reference clause 4.1 and 12.1 of the employees’ initial contracts of employment is repeated. These clauses expressly state that –

‘The employee’s/beneficiaries appointment shall be effective as of date of signature of this contract, or such other date as agreed to with the Employer,and shall terminate as at the date of practical completion of the contract work or such other date as may be advised by the employer on writing.” Clause 12.1 states “The employee’s/beneficiary’s contract shall terminate as at the project completion date or such alternate date as may be advised in writing by the employer.’

[48] The fact that some employees fixed term contracts were not renewed does not negate the fact that they were still employees of the municipality. The terms and conditions of their initial employment contracts cannot change without consensus between both parties. The municipality never agreed to employ the employees on a permanent basis.

[49] Accordingly, and despite the fact that some employees continued working for the municipality without renewed fixed term contracts, such continued employment does not transform or change the original terms and conditions of their employment contract.

[50] The terms and conditions of the employees’ initial fixed term contract are clear, on completion of the EPWP, the employees’ employment would terminate. The municipality complied with clause 12.1 of their initial fixed term employment contracts in that the employment contracts terminated on the projects’ completion date or their fixed term contracts will terminate if the employees are so advised in writing. The EPWP was completed and the employees were advised in writing.

[51] The question to be asked is whether despite the express contractual terms and conditions of the employees’ employment contracts and the express provisions of the Municipal Systems Act, do the employees still have a right under section 186 (1)(b) of the LRA to a reasonable expectation of permanent employment and if they do, then would the termination of their employment be unfair?

[52] In Mediterranean Woollen Mills (Pty) Ltd v SA Clothing Textile Workers Union[6], the Supreme Court of Appeal held that the wording of a contract in itself does not suffice to exclude an expectation of renewed employment.

[53] In Department of Agriculture, Forestry and Fisheries v Teto and others,[7] the Labour Appeal Court (LAC) held:

‘The fact that some of the terms and conditions of the respondents’ employment may have altered is not decisive. They remained employed by the same employer, albeit on different terms. If after the expiry of a fixed-term contract, an employee continues to render services to an employer and receives remuneration for the rendering of those services, the contract is deemed to be tacitly relocated or novated. The new contract may be on varied terms and its duration period must be determined in the light of the circumstances of each case. Unless a contrary intention can be inferred from the facts, it will generally be assumed that the parties intended the new contract to be of indefinite duration, terminable by reasonable notice given by either party[8]. The commissioner correctly held that this is what happened in this case. His reference to the new contract as a “permanent”

contract was perhaps a mischaracterisation, but he clearly meant that the new contract was one of an indefinite nature terminable by reasonable notice. His finding that the respondents were employees of DAFF, and thus that he had jurisdiction to determine the unfair dismissal dispute, was unassailably correct; as was his finding that since DAFF failed to lead any evidence justifying the dismissals it did not discharge its onus to prove their fairness.’ (Own emphasis)

[54] In situations where a fixed term contract is not renewed and the employees continue working, this does not necessarily guarantee that the employees are employed on a permanent basis with an indefinite duration. The employees’ reasonable expectations must be viewed in light of the events and circumstances of these three matters. More particularly, can a contrary intention be inferred to prove on a balance of probabilities that the employees were aware that their fixed term contracts were never intended to be permanent?

[55] In Naidoo v Nsibanyoni NO and Others[9] (Naidoo), the Court held that the test for determining whether a dismissal has taken place in terms of section 186(1)(b) of the LRA encompasses subjective and objective elements. In terms of the subjective element, an applicant must set out the material facts on which he/she bases his/her claim to an expectation of re-appointment. The objective enquiry is whether that expectation was reasonable.

[56] The Court in Naidoo further stated that[10] :

‘In Zungu v Premier, Province of Kwazulu-Natal and Another,[11] the LAC in dealing with a matter concerning the reasonable expectation of renewal of a fixed term contract, referred to the

judgment of National Director of Public Prosecutions v Phillips and Others 2002 (4) SA 60 (W) as follows:

‘[27] A legitimate expectation “arises where a person responsible for taking a decision has induced in someone who may be affected by the decision, a reasonable expectation that he will receive or attain a benefit or that he will be granted a hearing before the decision is taken”. De Smith, Woolf and Jowell Judicial Review of Administrative Action 5th ed at 417, para 8-037.

Such an expectation may arise, “either from an express promise given on or behalf of a public authority or from the existence of a regular practice which the claimants can reasonably expect to continue”. Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 (HL) ([1984] 3 All ER 935) at 401B- C; Administrator, Transvaal, and Others v Traub, and Others [1989] ZASCA 90; 1989 (4) SA 731 (A) at 756I; President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059) in para [212].[28] The law does not protect every expectation but only those which are “legitimate”. The requirements for legitimacy of the expectation, include the following:

(i) The representation underlying the expectation must be “clear, unambiguous and devoid of relevant qualification”: De Smith, Woolf and Jowell (op cit at 425 para 8-055). The requirement is a sensible one. It accords with the principle of fairness in public administration, fairness both to the administration and the subject. It protects public officials against the risk that their unwitting ambiguous statements may create legitimate expectations. It is also not unfair to those who choose to rely on such statements. It is always open to them to seek clarification before they do so, failing

which they act at their peril.

(ii) The expectation must be reasonable: Administrator, Transvaal v Traub (supra at 756I-757B); De Smith, Woolf and Jowell (supra at 417 para 8- 037).

(iii) The representation must have been induced by the decision-maker: De Smith, Woolf and Jowell (op cit at 422 para 8-050); Attorney-General of Hong Kong v Ng Yuen Shiu [1983] UKPC 2; [1983] 2 All ER 346 (PC) at 350h-j.

(iv) The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate: Hauptfleisch v Caledon Divisional Council 1963 (4) SA 53 (C) at 59E-G.’” (My emphasis)’

[57] In the instances where any representations were made to the employees, such representations were not made by lawful decision makers. This is in line with the municipality’s argument that there was no compliance with the Municipal Systems Act.

[58] Moreover, in these three matters and given inter alia:

58.1 the evidence by the employees during the various arbitrations;

58.2 the employees’ payslips specifically referencing the EPWP;

58.3 the express wording of their initial fixed term contracts;

58.4 the non-compliance with the Municipal Systems Act;

58.5 the actual purpose of the EPWP, being a public works scheme aimed at temporary job creation and skill development for a limited duration; and

58.6 the EPWP in 2017 came to practical completion,

all indicate that the intention inferred from the facts is that the employees could not have had a reasonable expectation of continued

permanent employment for an indefinite duration with the municipality.

[59] Accordingly and in following Owen and others v Department of Health, KwaZulu-Natal[12], even if the contract is tacitly converted into a permanent one of indefinite duration, terminable on reasonable notice, a contrary intention can be inferred from the facts in these matters. The contrary intention being on a conspectus of the evidence presented in all three matters, the employees could not have reasonably expected that their fixed term contracts could have morphed into permanent contracts for an indefinite duration.

The review applications

[60] The first issue that was before all the commissioners in all three arbitrations was whether there had been a dismissal or not. In the three arbitration awards the commissioners were all alive to this issue. This is demonstrated in each award:

60.1 Ramatshela matter – paragraph 8 of the award:

‘ISSUES TO BE DECIDED

8. Whether the applicants were dismissed and if so if it was fair. In the event it was not, appropriate relief must be determined.’ (own emphasis);

60.2 Phasha matter – paragraphs 7 and 8 of the award:

7. Whether the Applicants were dismissed by the Respondent or were employed on fixed term contracts which had come to an end. (own emphasis)

8. In the event that the existence of a dismissal is established, I must determine whether the dismissal was unfair, and if so, determine an appropriate relief.’

60.3 Moreroa matter – paragraph 8 of the award:

8. Whether the applicants were dismissed and if so if it was fair. In the event it was not, appropriate relief must be determined.’ (own emphasis)

[61] The first issue that came before all three commissioners was whether there had in fact been any dismissals. This issue goes to the jurisdiction of the SALGBC. The significance of establishing whether there was a dismissal or not is to determine whether the SALGBC had jurisdiction to entertain the disputes. It follows that if there was no dismissal, then the SALGBC had no jurisdiction to entertain the disputes in terms of section 191 of the LRA.

[62] Section 186(1)(a) of the LRA provides that a dismissal is when an employer has terminated employment with or without notice. In the Ramatshela matter, the award states “In their written submissions it was however, contended on behalf of the applicants that the dispute was not one in terms of section 186(b) but section 186(a).”[13] This is the same position the employees took in the Phasha matter when the commissioner found that “I find that the conduct of the employer party, by giving the Applicants notice of termination of employment, and effectively terminating their contracts of employment on 31 January 2017, indeed constituted a dismissal as contemplated in Section 186(1)(a) of the LRA of 1995”.

[63] The commissioners in the abovementioned awards seem to have conflated the basis of the employees’ terminations vacillating between section 186(1)(a) and (b) of the LRA. In Gauteng Provincial Legislature v The Commission for Conciliation, Mediation and Arbitration and Others[14] (Gauteng Provincial Legislature), it was stated:

‘[40] There is a fundamental difference between the dismissal postulated in the scenario contemplated in s 186(1)(a) and that envisaged in s 186(1)(b). The former is common where employees are in permanent or indefinite employment, and the latter, as the subsection expressly contemplates, are confined to situations where the employee is employed on a fixed-term basis.

[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 or 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 or her employment is going to be converted into permanent or indefinite employment, as envisaged in s 186(1)(b), as that expectation has already been met.’

[64] For the reasons stated above, I am of the view that the employees did not establish that they had been dismissed in terms of section 186 (1) (a) or (b) as they could not have reasonably expected to be employed on a permanent basis. As a result, the SALGBC had no jurisdiction to entertain the disputes.

[65] In Gauteng Provincial Legislature, the Court concluded that :[15]

‘Since it was the employee’s contention throughout that they were not employed on a fixed-term basis, but, tacitly on a permanent basis for the period as from 1 July 2015, they could not rely on s 186(1)(b) of the LRA, ie they could not have had any of the reasonable expectations as contemplated in that section. They could not pursue contradictory courses at once, or at the same time. Essentially, they thus failed to prove that they were dismissed. A reasonable arbitrator would have found accordingly. The court a quo erred in effectively finding the contrary.’

[66] I find that the employees failed to establish that their dismissals were in terms of either section 186(1)(a) or (b). Section 186(1) of the LRA defines the meaning of a dismissal. The SALGBC has jurisdiction to adjudicate unfair dismissals. The existence of a dismissal determines whether the SALGBC has jurisdiction to adjudicate the dispute.

[67] In De Milander v Member of the Executive Council for the Department Finance: Eastern Cape and Others[16], the LAC stated that:

‘Thus the issue before the commissioner, whether or not there had been a dismissal, was a jurisdictional issue. This means that if there was no dismissal the bargaining council did not have jurisdiction to entertain the dispute referred to it by the appellant (SA Rugby Players Association & others v SA Rugby (Pty) Ltd & Others; SA Rugby (Pty) Ltd v SARPU & another (2008) 29 ILJ 2218 (LAC)[2008] ZALAC 3; ; [2008] 9 BLLR 845 (LAC) at para 39). The question whether, on the facts of the case, a dismissal had taken place within the ambit of s 186 (1)(b) involves the determination of the jurisdictional facts. A jurisdictional ruling is subject to review by the Labour Court on objectively justifiable grounds and not on the reasonableness test approach as enunciated in Sidumo[17]. The test is whether, objectively speaking, the facts which would give the GPSSBC jurisdiction to entertain the dispute existed.’

Conclusion

[68] For all the reasons stated above, I find that that there were no dismissals as the employees’ contracts ended on the practical completion of the EPWP.

[69] This Court is reluctant to make costs orders against litigants for whom the prospect of an adverse costs order may serve to inhibit the exercise of what they perceive as their rights. Accordingly, I find that it is in the interests of justice by making no order as to costs.

[70] Accordingly, I make the following orders:

Order - in the Ramatshla matter

1. The review application is dismissed.

2. No order as to costs.

Order – in the Phasha matter

1. The review application is granted and the award is set aside and substituted with the finding that the employees were not dismissed.

Order - in Moreroa matter

S Swartz

Acting Judge of the Labour Court of South Africa

Appearances

In the Moreroa and Ramatshela matters:

For the Applicants: Adv. Z. Feni

Instructed by:

Qhali Attorneys

For the Respondent: Adv. G. Mashigo

Instructed by:

Rambevha Morobane Attorneys

In the Phasha matter:

For the Applicant: Adv. G. Mashigo

For the Respondent: Adv. Z. Feni

[1] Act 66 of 1995, as amended.

[2] Act 32 of 2000.

[3] See Award at para 51.

[4] 2022) 43 ILJ 1855 (LC) at para 16.

[5] Unreported decision case no JR1044/20 delivered on 7 March 2022.

[6] 1998) 19 ILJ 731 (SCA) at 734C.

[7] 2020) 41 ILJ 2086 (LAC) at para 20.

[8] J Grogan Workplace Law (10 ed) at 41-42; Redman v Colbeck 1917 EDL 35 at 38; and Braund v Baker, Baker & Co (1905) 19 EDC 54.

[9] Unreported decision case no JR54/18 delivered on 29 June 2020 at para 11.

[10] Ibid at para 9.

[11] 2017) 38 ILJ 1644 (LAC).

[12] 2009) 30 ILJ 2461 (LC).

[13] Award at para 64.

[14] 2022) 43 ILJ 616 (LAC) at paras 40 – 41.

[15] Ibid at para 61.

[16] 2013) 34 ILJ 1427 (LAC) at para 24.

[17] 2007] 12 BLLR 1097 (CC).