South African Broadcasting Corporation soc Limited v Shole and Others (JR 2638/19) [2022] ZALCJHB 94 (5 April 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 2638/19

In the matter between:

SOUTH AFRICAN BROADCASTING CORPORATION

SOC LIMITED

Applicant

and

DISEBO SEIPEI SHOLE

First Respondent

COMMISSIONER THEMBA R. ZWANE N.O.

Second Respondent

COMMISSION FOR CONCILATION,

MEDIATION AND ARBITRATION

Third Respondent

Heard: 26 October 2021

Delivered: 5 April 2022

Summary: Review application Succeeds-There is no order as to costs.

JUDGMENT

MABASO, AJ

Introduction

[1] The South African Broadcasting Corporation SOC Limited (SABC) has approached this Court for an order to review and set aside an arbitration award (arbitration award) issued by the second respondent (Commissioner) whom the Commission for Conciliation, Mediation and Arbitration (CCMA) appointed to arbitrate the dispute that had been declared by the first respondent (Ms Shole) wherein she claimed unfair dismissal

based on reasonable expectation. [1] At arbitration, the Commissioner ruled in her favour. This application is being opposed only by Ms Shole.

[2] Considering that the SABC’s central prayer is to substitute the arbitration award with an order that the termination of the fixed-term employment contract between itself and Ms Shole be declared that did not constitute a dismissal or in other words that the findings of the Commissioner in paragraphs 154 and 156 of the arbitration award be substiuted, this Court must reconsider the evidence afresh.

The Arbitration

[3] Ms Shole's resume within the SABC is as follows: between 2006 and 2013 she was employed as a freelancer,[2] thereafter from 1 March 2013 to 1 March 2015, she worked as a fixed-term contract employee in the capacity of Co-Ordinator.[3] This contract was extended from 01 March 2015 to 28 February 2018.[4] As per the policy of the SABC, her then manager, Ms Iris Cupido (Ms Cupido), wrote a motivation that her contract be converted into a permanent contract, which had to be supported by the Human Resources department (HR) and then approved by the Group chief executive officer (Group CEO). Ms Cupido communicated her motivation to Ms Nape Moholola (Ms Moholola), who raised her concern about possibly converting such a contract because of the then status within the SABC as Ms Shole's evidence on this issue was thus: “[Ms Cupido] said to me... there is a problem, there was a moratorium that we are not supposed to know the trouble is looming, so they suggested that instead of converting people, that we extend their contract.”

[4] In March 2018, she was no longer employed by the SABC, as Ms Moholola told her that as of March 2018, “[she] was no longer an employee of the SABC”. This statement was made following Ms Shole’s alleged frustration as she said that there were aberrant delays relating to the contract renewal.[5] She remained at home for the duration of March 2018 and drew no salary from the SABC, however, communication from Mesdames Moholola and Cupido was that they were still trying to secure a contract for her.[6]

[5] While waiting for the officials of the SABC to breathe a word of the possible conclusion of a contract, Ms Moholola then informed her about a so-called “special allowance” that she had been receiving since 2013, which later happened that it was an irregular payment and that the SABC was entitled to recoup from her. She then approached the CCMA claiming unfair dismissal based on a reasonable expectation, as the SABC had not renewed nor converted her contract to a permanent contract.[7] According to her resultant evidence, she was again contacted by Ms Moholola and Ms Cupido about the irregular payment. They advised her that they were prepared to offer her a six month contract because the department that she was working in “did not know at the moment what was going to happen”. In addition, Ms Moholola said it was in the best interest of the SABC that she was “hired” so that she could start to repay the money that was erroneously paid to her.[8] She accepted this offer by signing a new fixed-term contract which was to commence on 4 April 2018 and automatically

terminating on 30 September 2018.[9] She thereafter commenced her employment with the SABC, as per the new contract.

[6] Later on, the CCMA matter was enrolled for an arbitration hearing. However, on that day, she and the representative of the SABC agreed to engage further, as she still insisted on permanency. Accordingly, the arbitration did not go ahead on that day, as her the matter was withdrawn by her.[10]

[7] Approximately three months later, she authored an email to Ms Linda (SABC representative at the CCMA) wherein inter alia she said: “[a]t the meeting you explained that because of the one-year employment moratorium, it was a challenge to convert my current contract to permanent and I fully understand” (Own emphasis). I interpose and state that Ms Shole understood that there was a moratorium which red-flagged permanent appointments at the SABC.

[8] Despite the moratorium and before the expiry of the latter fixed-term contract, Ms Cupido again made motivation that Ms Shole’s contract be converted to a permanent one. This recommendation was

sent to the HR Manager, who unfortunately did not support it and made comments relating to their refusal.

[9] This contract was renewed for three months from October to December 2018. Before the expiry of then extended contract, late in October 2018, an Intern was brought in and Ms Shole trained same to do her work. And her evidence relating to this issue was partly thus:

‘Yes, I am training her to assist, you know somebody knowing that you know are training, when your job might fall away but you do it anyhow with the hope that, you know they will see the good in you.’[11]

[10] During cross examination by Mr Matjeke, Ms Shole confirmed that she was aware of the moratorium issued on 7 July 2017 advising that HR was not accepting any motivation for the filling of positions and that the creation of positions was suspended with immediate effect.[12] However, she gripped on a document issued in November 2012 by the then SABC chief operating officer, Mr Hlaudi Motsoeneng, but the evidence before the Commissioner confirmed that Mr Motsoeneng's directive was issued before Ms Shole was employed by the SABC as prior to 1 March 2013, she was a freelancer of the SABC, and the moratorium superseded this directive.

[11] Despite relying on the motivation and assurances made by Ms Cupido, Ms Shole acknowledged that the person who had authority to approve her permanency within the SABC was the Group Executive CEO, resultantly, Ms Cupido had no authority to do so. She confirmed that she owed the SABC money for the irregular allowance payments made and had to pay it back, so she was offered the six months contract to pay back this money as she was told that it was “in the best interest of the SABC”.[13]

[12] Following the meticulous piecing together of the evidence presented before him, the Commissioner noted the evidence of both Ms Tsolo and Ms Moholola and commented that both were misled by Ms Cupido, as she failed to tell Ms Shole what the take of the SABC executive committee (EXCO) was regarding her position. However, in favour of Ms Shole, the Commissioner said that Ms Cupido was “glad in the garb of [the SABC]” when she created such expectation and says that he took into account all the evidence presented before him and concluded that Ms Shole was dismissed by the SABC as a result. The Commissioner concluded that she should be compensated and “retained

on an indefinite basis” by the SABC. Furthermore, the Commissioner considered that the parties’ relationship had been

extended by way of a number of extensions.

[13] In summary, there are two main reasons that resulted in the Commissioner concluding that Ms Shole had reasonable expectations, namely that the contract was renewed several times and that an impression was created by Ms Cupido (together with Mr Mzu Ndlovu (Mr Ndlovu) and Ms Tsholo).

The grounds for the review application and analyses

[14] The grounds of review, as set out in the founding papers, are that:

14.1 Allegations of biaseness against the Commissioner.

14.2 In terms of the evidence, there are several indications which confirm that Ms Shole’s contract of employment was not going to be renewed and the Commissioner did not take such into account. These include the Cost Containment Directive issued by the SABC in 2017, weak financial position of the SABC which was communicated to Ms Shole and an email correspondence sent to Ms Shole by Mr Ndlovu advising that it was unlikely that her position would be made permanent.

14.3 That the Commissioner’s reliance on the evidence of Ms Cupido for an expectation to favour Ms Shole is wrong because it was

a well known fact that she had no authority to appoint.

14.4 That Ms Cupido had her own agenda and was not a reliable witness before the Commissioner, and was dishonest in the respect of her motivations. In summary and in respect of this point, the SABC contends that the Commissioner should have delved into the credibility assessment of this witness.

14.5 The SABC further contends that the Commissioner misunderstood the evidence before him which resulted in him reaching a conclusion which was not associated with the evidence before him, as they say that at some stage he correctly found the issue but when he deals with the evidence it is something else.

Applicable principles and application thereof

Alleged Biasness

[15] It is fairly normal practice in this Court that Applicants in review applications often accuse commissioners of being biased against them, and this happens typically when such Commissioners have issued arbitration awards which are not in those parties’ favour. For a presiding officer siezed with such question, like in casu, same must take into account that a commissioner is expected to conduct an arbitration in a manner they consider appropriate in order to determine a dispute fairly and that a commissioner will not be expected to sit back when clarity is required because at the end of the day, such commissioner will have to issue an arbitration award setting out the issues in dispute[14].

[16] In Mbana v Shepstone & Wyle,[15] the Constitutional Court reiterated the test for biaseness:

‘…in claims of actual or perseived biaseness arising from both trial court conduct and judicial association is the same: a litigant must show that “a reasonable, objective and informed person would, on the correct facts, reasonably apprehend bias”…’

[17] I have considered the points raised relating to this point, especially the point that the Commissioner is accused of introducing into the dispute, new points after re-examination without giving the parties an opportunity to ask questions. I cannot entirely agree with the SABC on this point. Instead, the Commissioner raised the contemporary issues, as he confirmed that he was raising issues that neither of the parties had raised which were, inter alia, relating to Mr Motsoeneng’s qualifications. However, I must say that, because it was Ms Shole who had mentioned Mr Motsoeneng’s

qualifications in passing, the Commissioner needed clarity in this respect (although such issue played no role in the Commissioner’s

conclusion, considering the arbitration award, and I must indicate that it was an irrelevant question). Instead, other questions raised by the Commissioner assisted the process in order for him to understand the dispute, as certain issues were not clarified by the parties during their respective evidence. Therefore, my view is that issues raised by the Commissioner could not suggest biasness, so examples raised in the affidavits do not meet the test as set out above.

Was expectation reasonable/ was Ms Shole dismissed?

[18] The Labour Appeal Court (LAC) in SA Rugby Players Association and others v SA Rugby (Pty) Ltd and others,[16] held thus:

‘…They had to place facts which, objectively considered established a reasonable expectation. Because the test is objective, the enquiry is whether a reasonable Employee in the circumstances prevailing at the time have expected the Employer to renew his or her fixed term contract on the same or similar terms…’ (Own emphasis)

[19] The test is whether the Commissioner's outcome is correct or wrong, considering the totality of the evidence that was before him, as such inquiry relates to the jurisdictional point, as Ms Shole was expected to prove the existence of the dismissal in terms of section 192(1) of the Labour Relations Act (LRA)[17]. This will require a determination of whether such expectation was reasonable. if this Court finds that the expectation was based on a mistake or the wrong assumption, such expectation would be ruled unreasonable and consequently the dismissal was not proved before the Commissioner[18]. I must add that an expectation caused by opportunism and/or desperation will suffer the same fate.

[20] Considering that in casu the Commissioner concluded that Ms Shole been appointed on an indefinite contract, it is germane for the Court to consider the

recent case of Gauteng Provincial Legislature v Commission for Conciliation, Mediation and Arbitration and others,[19] wherein the LAC, when faced with a similar question, set out the following yardstick:

‘The synthesis, essentially, requires the court to embark on a three-stage, as opposed to a two-stage, process. The first stage would be to decide on a balance of probabilities what facts have been established. The second stage would be to decide, also on a balance of probabilities, what conclusion, consistent with those established facts, is correct, and a third stage would be interposed between those two, in terms of which the court has to decide how the proved facts, that is including the conduct of each party and the relevant circumstances, was probably interpreted by each of the parties. It is said that at the third stage the court is essentially looking at the matter “through the eyes of the parties — at their conduct and the circumstances” and “unless the conduct in those circumstances was so clear, so unequivocal, so unambiguous that the parties must have regarded themselves in agreement, there is no contract”.’

[21] On a conspectus of all the evidence, I am satisfied that the SABC has shown that the Commissioner committed a reviewable irregularity in concluding that Ms Shole was dismissed by the SABC, as set out below.

[22] It is common cause that at the time of the effluxion of the contract of February 2018, Ms Moholola had told Ms Shole that she was no longer an employee of the SABC and at the time, there was still a moratorium indicating that there should not be appointments within the SABC; that the motivations submitted by Ms Cupido for the permanent appointment of Ms Shole had not be supported by the HR department; and the Group CEO had not approved it. Ms Shole was aware that the SABC had financial challenges and that Mr Ndlovu had already shown that there was uncertainty about her department.

[23] For the whole month of March 2018 Ms Shole did not work for the SABC and drew no salary from the latter. Resultantly, Ms Shole had declared the first dispute which was subsequently withdrawn following the six months contract being offered and accepted. The circumstances mentioned in the preceding paragraph had not changed at all material times. Ms Shole was offered

the six months contract and both Mesdamse Moholola and Cupido told her that such was to allow her to repay the money that she owed to the SABC, as Ms Moholola said it was going to be in the interest of the SABC for Ms Shole to be “hired” so that she could repay the money, and this final contract was clear that it was only for a period of six months.

[24] When she declared the dispute which resulted to the arbitration award, the circumstances had not changed (and no evidence was presented suggesting otherwise). In addition to the moratorium, and advice from Mr Ndlovu, Ms Shole’s expectation that her position was to be converted into permanency is unreasonable as she seemed to rely on what Ms Cupido was doing and saying, despite knowing that Ms Cupido had no authority to appoint her and that such authority sat with the then Group CEO.

[25] Even though the position was still available, Ms Shole confirmed that she trained the Intern to do her job, and this happened mid-October 2018. So, on the balance of probabilites it is accepted that the SABC offered Ms Shole a six months contract in order for her to repay the money that was erronously paid to her. Although, the timing thereof might seem to suggest that the SABC wanted to mislead Ms Shole to withdraw the first dismissal dispute, this was not the issue placed before the Court. However, I need to remind myself that the issue before the Commissioner was about reasonable expecation as Ms Shole was not suggesting that the Commissioner should investigate as to whether she was misled to accept the six months contract.

[26] Based on the foregoing, it is my considered view that indeed the Commissioner’s conclusion is not based on objective facts

before him. Instead, the evidence presented before the Commissioner suggests that Ms Shole’s personal circumstances,[20] and the close relationship that she had with Ms Cupido resulted in her using each and every opportunity to push for pemarnancy despite circumstances suggesting otherwise. This results in the conclusion that Ms Shole did not prove the dismissal, so the CCMA had no jurisdiction to hear the matter.

[27] On this premises, the following order is made:

Order

1. The review application succeeds;

2. The arbitration award issued by the Second Respondent under the CCMA’s case number GAJB 1067-19 is reviewed and set aside, and replaced with an order that:

“The dismissal dispute by the Applicant is dismissed as the CCMA has no jurisdiction”.

3. There is no order as to costs.

S. Mabaso

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant:

Adv. W P Bekker

Instructed by: Cliffe

Dekker Hofmeyr Inc.

For the Respondent: Mr C J Brandt

Instructed by: Assenmacher

Brandt Attorneys

[1] Pleading bundle: p 25 at para. 129.

[2] Records: pp 625- 626.

[3] Bundle A: pp 1-11.

[4] Records: pp 23-26.

[5] Ibid, p 30.

[6] Ibid, pp 31-32.

[7] Ibid, pp 36 and 167.

[8] When the Commissioner asked Ms Shole questions about why the six months.

[9] Bundle A, p 23.

[10] Records: pp 168-171 and 181.

[11] Ibid, p 163-4.

[12] Ibid, p 101.

[13] Ibid, p 114-5.

[14] See: Section 138(1) of the Labour Relations Act No. 66 of 1995, as amended. See also: Raswiswi v Commission for Conciliation Mediation and Arbitration and others (2011) 32 ILJ 2186 (LC) at paras 13. 16 and 21.

[15] (2015) 36 ILJ 1805 (CC) at para 40.

[16] (2008) 29 ILJ 2218 (LAC) at para 44.

[17] Act No. 66 of 1995. See: Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 101 underpinned in Kukard v GKD Delkor (Pty) Ltd (2015) 36 ILJ 640 (LAC) at para 12.

[18] University of Cape Town v Auf der Heyde (2001) 22 ILJ 2647 (LAC) at para 21. See also: Independent Municipal And Allied Trade Union and another v City of Johannesburg Metropolitan Municipality and others [2014] 6 BLLR 545 (LAC) at para 33.

[19] (2022) 43 ILJ 616 (LAC) at para 52.

[20] As summarised in the email of 03 February 2015, Employee’s bundle p 43.