Transport and Retail Allied Workers Union and Others v Grinding Media South Africa (Pty) Ltd (JR2481/2022) [2025] ZALCJHB 340 (8 August 2025)

FLYNOTES: LABOUR – Fixed term contract – Termination – Non-renewal – Legitimate expectation – Correctness test – Employees hired as temporary replacements during training transition – Contracts explicitly stated they were of limited duration and required no expectation of renewal – Failed to demonstrate a subjective and objectively reasonable expectation of renewal – Repeated extensions and delays did not establish legitimate expectation of indefinite renewal – Contracts terminated lawfully – No dismissal occurred – Application dismissed.

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR2481/2022

In the matter between:

TRANSPORT AND RETAIL ALLIED WORKERS

UNION (‘TRAWU’)

First Applicant

Obo THABANG PHOLOANA

AND 10 OTHERS

Second to Further Applicants

and

GRINDING MEDIA SOUTH AFRICA (PTY) LTD First Respondent

METAL AND ENGINEERING INDUSTRIES

BARGAINING COUNCIL (‘MEIBC’)

Second Respondent

COMMISSIONER MOHAMED RAJAH N.O Third Respondent

Heard: 7 November 2024

Delivered: 08 August 2025

JUDGMENT

ANESTIDIS, AJ

Introduction

[1] This matter concerns a review application to review and set aside an arbitration award (Award) issued by the third respondent, acting under the auspices of the second respondent, in terms of which it was found that the applicants were not dismissed, as their limited duration contracts simply came to an end.

[2] As per the applicants’ notice of motion, they seek to have this Court replace the third respondent’s arbitration award with an award that the applicants were dismissed unfairly, both procedurally and substantively. The applicants further seek that this Court order that the applicants be reinstated to the fixed-term contracts they had with the first respondent, ‘until

a proper procedure is followed’ and, in the alternative, the applicants seek just and equitable compensation. Finally, as further alternative relief, the applicants seek that the dispute be remitted to the second respondent for a hearing de novo before a different Commissioner.

[3] The review applicant is opposed.

[4] At the hearing of the review application, and after the Court sought clarification from the applicants in relation to the primary relief sought by them, the applicants abandoned the reinstatement relief and counsel for the applicants confirmed that they only seek maximum compensation, alternatively, that the dispute be remitted to the second respondent for a hearing de novo before a different Commissioner.

Background facts

[5] There are 11 individual applicants:

5.1 Eight of the applicants[1] commenced employment with the first respondent on 6 April 2021, in terms of fixed-term contracts for a period of two months, which were due to end on 31 May 2021;

5.2 Two of the applicants[2] commenced employment with the first respondent on 1 June 2021, in terms of fixed-term contracts for a period of 1 (one) month, which were due to end on 30 June 2021; and

5.3 One of the applicants[3] commenced employment with the first respondent on 20 December 2021, in terms of a fixed-term contract ending on 7 January 2022.

[6] After the initial expiry of the applicants’ respective fixed-term contracts, their employment was extended, on occasion for

a two month period, but mostly on a monthly basis (i.e. for a period of one month, until the end of May 2022.

[7] During early May 2022, all of the applicants were advised, in writing, by the first respondent that their fixed-term contracts will not be renewed any further, with the result that the employment relationship between the parties would come to an end, by the effluxion of time, on 31 May 2022.

Grounds of review

[8] Broadly speaking, the applicants contend that the third respondent committed gross misconduct and failed in his duties as an arbitrator when he found that the individual applicants were not dismissed. The applicants further contend that the arbitrator misconstrued the nature of the enquiry before him which resulted in the applicants not being afforded a fair trial of issues.

[9] The applicants contend that the third respondent was enjoined to conduct a two-stage enquiry: firstly, to enquire as to whether the first respondent created an expectation for the renewal of the fixed-term contracts; and secondly, if such an expectation was created, whether it was reasonable.

[10] The applicants further contend that, based on the facts, an expectation was created by the first respondent that the applicants’ contracts of employment would be renewed on a ‘monthly basis’ since it was common cause that certain of the applicants’ contracts of employment were extended on 12 occasions. To this end, the applicants contend that it was reasonable for them to expect their contracts to be renewed because they could still perform the duties that they were performing before the termination of their contracts, and such work was still available.

[11] The applicants contend that the first respondent’s version that the individual applicants were specifically employed to replace or stand in for permanent employees who were undergoing training, must be rejected since its witness confirmed that the training ended in October 2021, however, the fixed-term contracts were renewed thereafter, on a monthly basis, until May 2022.

[12] In their founding affidavit, the applicants reaffirm that their expectation was, at all times, one of renewal, as opposed to being offered permanent employment. At the conclusion of the applicant’s founding affidavit, it is alleged that a reasonable arbitrator could have found that the individual applicants proved that the first respondent created a reasonable expectation that their fixed-term contracts would be renewed by the first respondent and order that the contracts ‘should be so renewed on month-to-month basis’.

[13] The applicants further contend that they were not informed (as alleged by the first respondent) of the reason/s for the extensions of their fixed-term contracts, at the time when the extensions were effected. They contend that there were no discussions or explanations regarding the extensions.

First respondent’s submissions

[14] The first respondent contends that no material facts were ignored by the third respondent which could have caused him to arrive at a different result, and that the third respondent adequately addressed the questions raised for determination during the proceedings and his ruling.

[15] Regarding the facts of the matter, the first respondent alleges that it was necessary to employ the applicants on fixed-term contracts in order to man the arc furnace in place (i.e. temporary substitution) of the first respondent’s permanent employees. They contend that it was necessary to extend the fixed-term contracts until such time as its permanent employees completed their induction training and after the transition process from the arc furnace to the induction furnace was concluded. According to the first respondent’s version, this process endured longer than expected due to challenges including but not limited to the literacy levels of the permanent employees and the availability of trainers.

[16] The first respondent contends that the applicants were aware of the fact that their services were only needed until such time as the training and transition period were finalised. They contend that the applicants were informed with every extension of the reasons for the extension, which reasons remained the same throughout. The first respondent contends further that there could not have been any reasonable expectation that the fixed-term contracts would have been renewed ad infinitum.

[17] Accordingly, the first respondent argues that the applicants were not dismissed, and their limited duration contracts merely came to an end.

Analysis

The applicable legal test

[18] At the outset, it is important to deal with the applicable legal test to this review application. This is particularly necessary in light of the parties’ papers and legal submissions (both written and verbal).

[19] In the matter of SA Rugby Players Association & others v SA Rugby (Pty) Ltd & others[4] the Labour Appeal Court (LAC) held that:

‘[39] The issue that was before the commissioner was whether there had been a dismissal or not. It is an issue that goes to the jurisdiction of the CCMA. The significance of establishing whether there was a dismissal or not is to determine whether the CCMA had jurisdiction to entertain the dispute. It follows that if there was no dismissal, then the CCMA had no jurisdiction to entertain the dispute in terms of section 191 of the Act.

[40] The CCMA is a creature of statute and is not a court of law. As a general rule, it cannot decide its own jurisdiction. It can only make a ruling for convenience. Whether it has jurisdiction or not in a particular matter is a matter to be decided by the Labour Court…

[41] The question before the court a quo was whether on the facts of the case a dismissal had taken place. The question was not whether the finding of the commissioner that there had been a dismissal of the three players was justifiable, rational or reasonable. The issue was simply whether objectively speaking, the facts which would give the CCMA jurisdiction to entertain the dispute existed. If such facts did not exist the CCMA had no jurisdiction irrespective of its finding to the contrary.’ (own emphasis)

[20] In the matter of Enforce Security Group v Fikile & others,[5] the LAC considered the test to be used in circumstances where the issue to be determined related to the existence of a dismissal. It held as follows:

‘The review test

The question whether there has been a dismissal goes to the jurisdiction of the CCMA and the Labour Court to entertain the parties' dispute. A finding that there was no dismissal means that the CCMA and subsequently the Labour Court did not have jurisdiction to entertain the dispute. Such a finding, as a matter of fact, has to be a correct finding. It cannot be a finding that falls within a band of reasonable findings since there can only be one correct finding. To the extent that the court a quo found that the award stands to be reviewed and set aside as a decision which no reasonable decision maker could have reached it misdirected itself because it applied a wrong test to review the award of the commissioner.’ (own emphasis)

[21] Accordingly, the correctness test, and not the reasonableness test, is the ‘correct’ test to apply in this review application.

[22] Against the above, what then should this Court make of the fact that the applicants have not clearly relied upon and/or applied the correctness test to their review application, with reference to their founding affidavit and heads of argument?

[23] In the past, the Courts have penalised applicants who referenced and/or applied the incorrect legal test on review. However, it appears that this issue has now been settled in terms of the recent judgment of Cape Peninsula University of Technology v Kabengele & others[6] wherein the LAC held as follows:

‘[9] CPUT takes issue in this appeal, in the first instance, with Mr Kabengele’s failure to plead that the arbitration award fell to be reviewed on the grounds of correctness, pleading rather that the reasonableness test applied. Mr Kabengele disputes this on the basis that, properly considered, his pleadings can be read to include a review on the basis of correctness…

[10] The Constitutional Court in Booi v Amathole District Municipality and others ("Booi") emphasised that labour litigation, as envisaged by the LRA, is distinct from any other civil litigation, with the preamble of the LRA making it clear that the Act seeks "to provide simple procedures for the resolution of labour disputes . . ." The Court stressed that labour disputes must therefore "not be perceived as ordinary civil disputes by the courts that adjudicate

them. Our law is clear: labour dispute resolution must be expedient, simple, accessible and cost effective".

[11] In Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Limited and others, the Constitutional Court stated that, from a holistic reading of the LRA, it is apparent that its dispute resolution mechanisms are intended to be "simple and accessible, so that those to whom the labour rights enshrined in our Constitution are conferred can vindicate those rights speedily and cost-effectively". The Court cautioned, in the context of an award of legal costs, against shutting the doors on litigants unduly and encouraged that an appropriate balance be struck in labour matters between keeping the doors of dispute resolution "wide open for litigants to air their grievances" to allow those who seek to vindicate their constitutionally entrenched labour rights in the specialist institutions created by the LRA to do so.

[12] Despite the recognised distinctions which exist between labour and other civil litigation, many of the same rules apply equally to both. A court is bound to determine the pleaded case before it and a review court is not permitted, as a general rule, to stray into the determination of issues which have not been pleaded by the parties. It is only where the parties have proceeded on an incorrect perception of the law that a court is obliged mero motu to raise as much as it may where it is necessary to raise an issue to dispose of the matter and it is in the interests of justice to do so.

[13] In NUMSA, the Labour Court refused a postponement and dismissed a review application on the basis that the applicant was bound by its pleaded case on review. The Court found that to allow the introduction of a new cause of action after an extensive period had elapsed since the employees' claim had arisen would defeat the purpose of expeditious dispute resolution. In SA Post Office v Commission for Conciliation, Mediation and Arbitration and others16 ("SA Post Office"), the Labour Court dismissed a review application on a similar basis. Yet, in PSA obo Mackay and others v Department of the Premier Western Cape and others17 ("PSA"), the Labour Court found that to non-suit an applicant who had pleaded the wrong review test amounted to an overly technical approach, out of kilter with the primary objects of the LRA, when, in instituting the review application, the applicant had made it clear that it considered the award to be wrong. The Court stated that implicit in the allegation of unreasonableness was the fact that the applicant considered the award to be wrong, given that unreasonableness amounted to a more stringent threshold since an unreasonable award could not be correct. This Court similarly, in Enforce Security and Jonsson Uniform Solutions, determined an appeal on the basis of correctness, despite the fact that the review had been pleaded on the basis of reasonableness.

[14] In the current matter, from a reading of the founding affidavit in the review application it is apparent that although reasonableness was expressly pleaded, Mr Kabengele also took issue with the correctness of the award. He expressly challenged the commissioner's failure to appreciate and draw conclusions from particular facts, detailing a number of instances in respect of which the commissioner had erred.

[15] Although imprecisely pleaded, the Labour Court was therefore correct in refusing to non-suit Mr Kabengele on the basis that he had

not expressly pleaded that the review of the award was sought on the basis of correctness. This is so in that it was patently clear from the pleadings that Mr Kabengele considered the award to be wrong and, unlike in NUMSA, he did not seek to raise a new review ground which had not been pleaded for the first time at the hearing of the review application. In suggesting that Mr Kabengele should be non-suited on this basis, CPUT sought to raise what amounted to an unmeritorious technical defence. Within the context of labour litigation, such defences are to be viewed with caution by our courts and are not to be quickly accepted given the constitutional right to fair labour practices, the nature of labour disputes and the approach of the LRA to the resolution of such disputes.’ (own emphasis)

[24] On the basis of the above authority, I find that similarly the benefit of the doubt should be given to the applicants, in terms of which their pleadings may be generously interpreted as contending that the third respondent’s Award was wrong. In any event, even if this were not the case, in light of the constitutional right to fair labour practices, the nature of labour disputes and the approach of the LRA to the resolution of such disputes, in my view the review application should not be dismissed on this rather technical basis, with the result that the full merits of the application must be considered.

Reasonable expectation

[25] Central to this review application is whether it can be said that the applicants formed a reasonable expectation that their fixed-term contracts with the first respondent would be renewed. As correctly pointed out by the applicants’ representative, this 'expectation' must be assessed as reasonable both subjectively and objectively.

[26] It is trite that the previous renewals of a fixed-term contract do not, alone, cause a reasonable expectation that such a contract will be renewed by the employer. Indeed, something else and something more would be required for such an expectation to be formed. Furthermore, where a fixed-term contract contains a clause to the effect that the employee can have no expectation that the contract would be renewed (as was the case in casu) the employee will be required to provide more compelling proof than would otherwise be the case that the expectation of renewal was reasonable.

[27] In this regard, clause one of the applicants’ fixed-term contracts all stated as follows under the heading ‘Period of

employment’:

‘… Should the company require your services further than the termination date mentioned afore, a notice of not less than 10 days will be given.’

[28] As per the case of SA Rugby (Pty) Ltd v CCMA & others,[7] the test for an employee to rely successfully on section 186(1)(b) of the LRA, is as follows:

28.1 he must establish that, subjectively, he had an expectation of continued employment (either in terms of another fixed term contract or indefinitely);

28.2 that the expectation was objectively reasonable; and

28.3 that the employer did not renew the contract or renewed it on less favourable terms.

[29] The first requirement in determining whether this form of dismissal has occurred is whether the employee subjectively expected: the contract to be renewed. If there is no such subjective expectation, the employee cannot claim to have been dismissed in this sense, even if the circumstances were such that the expectation could be judged reasonable.

[30] In the case of Member of the Executive Council for the Department of Finance, Eastern Cape v De Milander,[8] the key issue was whether the employee had in fact acquired a reasonable expectation. This called for two inquiries:

30.1 whether she had actually expected her contract to be renewed; and

30.2 if so, whether that subjective expectation was reasonable.

[31] On appeal,[9] the LAC held as follows:

‘[31] … In the circumstances, the letter of 30 September 2008 could not have led the appellant, on any plausible basis to expect that her contract would, upon its expiration, be renewed, upon its expiration, be renewed. Even if it did, her expectation could not, given the correspondence, have been genuinely or honestly held.

…

[35] I disagree with the appellant. The question whether the employer's failure to renew the fixed-term contract of employment constitutes a dismissal within the meaning of section 186(1)(b) is a legal one. In other words the Commissioner hearing the matter is called upon to determine the conclusion of law. It is therefore incumbent upon an employee who brings an unfair dismissal dispute in terms of section 186(1)(b) to set out the material facts upon which he relies for the conclusion of law he wishes the Commissioner to draw from those facts and it will not be sufficient, therefore to plead a conclusion of law without pleading the material facts giving rise to it. The mere ipse dixit of an employee, without further evidence, is not sufficient. The setting of this standard will prevent the opening of the floodgates for large numbers of other cases involving claims based on section 186(1)(b).’

[32] The second requirement in determining whether this form of dismissal has occurred is whether the employee’s claim that he/she expected: the contract to be renewed or to be retained permanently, was reasonable in the objective sense, i.e. whether the circumstances were such that any reasonable employee would, in the circumstances, have expected the contract to be renewed on the same or similar terms or to be retained permanently.

[33] In the case of SA Rugby Players’ Association & others v SA Rugby (Pty) Ltd & others,[10] the LAC held as follows:

‘[51] Furthermore, Heymans acknowledged that the contracts would be coming to an end by mutual agreement and proposed that the players should remain on those contracts until such time that SA Rugby had communicated with the players. This proposal was in my view a request for an extension of the contracts that would expire and cannot be basis for a reasonable expectation of renewal. Lastly, on this aspect, Heymans expressed the view that players needed to know their future prospects in relation to their national contracts. This was, as contended on behalf of respondent, evidence of uncertainty and not of an expectation of renewal”

[52] In my view, a statement by the then national coach-Straueli that the players were part of his plans for 2004 is not sufficient to form a basis for a reasonable expectation…’ (own emphasis)

[34] In the case of Dierks v University of South Africa,[11] this Court summarised some of the factors which must be taken into consideration when determining whether or not an employee has been dismissed in terms of section 186(1)(b) of the LRA. The Court held as follows:

‘[132] In my view, it can be deduced from the aforegoing and the use of the word "reasonable" that the Applicant as employee must prove that he had an expectation of renewal and that that expectation was reasonable in that apart from subjective say-so or perception there is an objective basis for the creation of his expectation”.

[133] A number of criteria have been identified as considerations which have influenced the findings of past judgments of the Industrial and Labour Appeal Courts. These include an approach involving the evaluation of all the surrounding circumstances, the significance or otherwise of the contractual stipulation, agreements, undertakings by the employer, or practice or custom in regard to renewal or reemployment, the availability of the post, the purpose of or reason for concluding the fixed term contract, inconsistent conduct, failure to give reasonable notice, and nature of the employer's business. (See Olivier: supra at 1030).

[134] These factors are not a numerus clausus. Indeed, in my view, the identified approach of an evaluation of all the surrounding circumstances entails an analysis of the facts in any given situation for the purpose of establishing whether a reasonable expectation has come into existence on an objective basis.’’

[35] Against the above principles and authority, I now turn to the facts of this case.

[36] It is not the applicants’ case that they expected to be employed on a permanent basis, nor is it their case that they were

offered positions on less favourable terms. Their case turns on whether they held a reasonable expectation that their contracts would be renewed.

[37] According to the applicants, their expectation was based, in the main, on the following:

37.1 the large number of previous renewals of their contracts;

37.2 the manner in which their contracts were renewed, whereby they would be requested to sign new fixed-term contracts (or extensions thereof) a few days after the expiry of their existing or prior contracts;

37.3 the fact that the non-renewal of the applicants’ fixed-term contracts was inconsistent and/or contradictory to the handling of other fixed-term contracts of other employees (such as a Mr Smears, for example);

37.4 the work which the applicants were employed to perform is still available and can still be performed. The Arc furnace was still running at the time of their termination and it appeared would still run for some time, thereby creating a need for their services. In addition, the applicants claimed that they performed work on both the Arc furnace and Induction furnace; and

37.5 the training of the first respondent’s permanent employees (whom the applicants supposedly replaced on a temporary basis) ended in October 2021, yet the applicants were retained until May 2022, in the form of repeated renewals of their fixed term contracts.

[38] However, the above is countered by the following:

38.1 as dealt with supra, clause one of the applicants’ fixed-term contracts provided a positive obligation on the first respondent to provide the applicants with, at least, ten days’ notice ‘should the company require [their] services further than the termination date mentioned afore’. Accordingly, it follows that the common cause failure on the part of the first respondent to rigidly adhere to and follow this clause, would only detract from any expectation, reasonable or otherwise;

38.2 evidence was led by the first respondent’s witness regarding a document addressed to the NUMSA shop stewards, dated 1 April 2021, wherein the names of the majority of the applicants is recorded together with the following explanations:

‘Please note that the company has decided to acquire the services of former employees on a temporary basis as contract workers.

The reason for this temporary arrangement is so that the contractors are able to assist with the work on the Arc Furnace while our current employees are undergoing training of the Induction Furnace.’

38.3 the applicants themselves provided the following telling evidence during the arbitration, which speaks directly to their expectations as well as the purported reasonableness thereof, or lack thereof:

‘MR NGXOLWANA: Is it then your expectation to go back to the fixed term, to the terms and conditions of the fixed term contract, yes or not?

MR LENGOABALA: Yes.

MR NGXOLWANA: And if that is the case for how long?

MR LENGOABALA: I would not really much say for how long.

“MR NGXOLWANA: Now I am asking you, under those circumstances would you be comfortable entering or be reinstated on a fixed term contract indefinitely?

MR LENGOABALA: No that I will engage the company when I am inside.’ (own emphasis)

38.4 it is common cause that the applicants’ two-month fixed-term contracts and renewals reduced to one-month fixed-term contracts and renewals; and

38.5 it must be said that one-month fixed-term contracts do not, by any stretch of the imagination, provide any semblance of comfort or confidence in a long-term employment relationship. Therefore, the short duration of the fixed-term contracts in and of themselves significantly detract from any reasonable expectations in casu.

[39] Ultimately, it is difficult to escape the evidence of the applicants themselves, which speak to their subjective expectation as well as the reasonableness thereof.

[40] While it is certainly problematic that the training of the first respondent’s permanent employees ended in October 2021, coupled with the fact that the applicants’ fixed-term contracts were repeatedly renewed (many times) until May 2022, this is, in my

view, insufficient to render the third respondent’s award wrong.

[41] Finally, during argument, Mr Ngako (appearing for the applicants) sought to alter the applicants’ relief from reinstatement to maximum compensation for their alleged unfair dismissals. However, this is misplaced and puts the proverbial cart before the horse. Although the original relief sought by the applicants – to be reinstated to the terms and conditions of employment they enjoyed when allegedly dismissed (i.e. back to a one-month fixed-term contract) – was impractical, altering the relief does not cure the patent difficulties with the applicants’ case, more specifically their expectations, which is more fully dealt with above.

[42] In conclusion, and for all the reasons provided above, I find that the third respondent’s award was correct and it, therefore, is not susceptible to any successful review or challenge.

Costs

[43] In relation to costs, the Court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness. In my view, those requirements are best satisfied by each party bearing their own costs.

[44] I make the following order:

Order

1. The applicants’ review application is dismissed;

2. No order as to costs.

A Anestidis

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicants:

X Ngako

Instructed by:

Ngako Attorneys

For the first respondent: J Stroebel

Instructed by:

Wolmarans & Susan Inc

[1] Thabang Paul Pholoana; Daniel Lengoabala; Ben Letele; Tebelo Ramashoai; Bhekithemba Nene; Sifiso Ngobese; Johannes Sesera; and Vusi Yaka.

[2] Lunga Siyongwana; and Emmanuel Molefe.

[3] Lehlohonolo Phaphu.

[4] ([2008] [2008] ZALAC 3; 9 BLLR 845 (LAC) at paras 39 – 41.

[5] (2017) 38 ILJ 1041 (LAC) at para 16.

[6] (2024) 45 ILJ 1973 (LAC).

[7] [2006] 1 BLLR 27 (LC) at para 9.

[8] (2011) 32 ILJ (LC).at para 29.

[9] De Milander v Member of the Executive Council for the Department of Finance, Eastern Cape and others (2013) 34 ILJ 1427 (LAC).

[10] (2008) 29 ILJ 2218 (LAC) at para 51 and 52.

[11] (1999) 20 ILJ 1227 (LC) at paras 132 to 134.