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IN THE LABOUR COURT OF SOUTH AFRICA

                       Case no: D 128/19

Not Reportable

In the matter between:

RICHMOND LOCAL MUNICIPALITY                                         Applicant

and

NOMATHAMSANQA MKHIZE                                                     First Respondent

SALGBC                                                                                          Second Respondent

A SEWPERSAD N.O.                                                                     Third Respondent

Application heard: 11 March (via Zoom) and 31 March 2021 (via written submissions)

Delivered:  This judgement was handed down electronically by circulation to the parties’ legal representatives by email. The date and time for the hand down is deemed to have been at 12 noon on 16 July 2021.

JUDGMENT

WHITCHER J

[1]       This is an opposed application brought to review and set aside the award made by the third respondent acting as arbitrator under the auspices of the second respondent in which she: (i) dismissed the applicant’s argument that the bargaining council lacked jurisdiction to adjudicate the dispute; upheld the first respondent’s (‘the respondent’) claim under section 198B of the LRA that she be deemed a permanent employee of the applicant; found that the respondent had been dismissed and that the dismissal had been substantively and procedurally unfair; ordered the applicant to reinstate the respondent “up until the date of this award, at the rate of pay applicable to the entry level scale of a secretary on terms and conditions of employment that are no less favourable compared to similarly placed employees at the [applicant] with effect from 20 October 2017; and ordered the applicant to pay the difference in the amounts due to the respondent in terms of the award.

[2]       The applicant also sought condonation for the late filing of the review application, which I grant on the basis that the default is not so gross as to shut the applicant out of court and because it demonstrated good prospects of success.

The evidence before the arbitrator

[3]       On 16 October 2017, the Strategic Manager: Technical Services, Mr Mkhize, delivered a letter to the Municipal Manager [A B Mnikathi]. He informed her that the post of Personal Assistant to his post was vacant, he urgently needed a personal assistant and asked if he could employ the respondent on a contractual basis until the post was formally and permanently filled. He further recommended that the respondent be paid a salary at the same level as the other personal assistants.

[4]       It was the undisputed evidence of Mr Ramnath, the Senior HR Officer that all contracts of employment must be vetted by him and approved by the municipal manager.  This is confirmed by the fact that Mkhize sought the written approval of the municipal manager to employ the respondent. 

[5]       It is common cause that the respondent was employed in the following manner. Mhize telephoned her in October 2017, asked if she was available to work, and, after receiving approval from the municipal manager as described above, called the respondent to commence work on 20 October 2017.

[6]       A careful reading of the whole of the respondent’s testimony, the contents of her referral to the bargaining council and her letter to Rambath in April 2018 reveals that while she at times suggested otherwise, she received and signed the following contract when she commenced work in October 2017: a contract dated 20 October 2017, the material terms of which were that the respondent’s appointment was for the fixed period of 20 October 2017 to 31 May 2018 and that she would be paid a monthly salary of R2500.00.

[7]       This is also the only contract that was vetted by Rambath and signed by the municipal manager.

[8]       In light of this the other purported contracts she referred had no application.

[9]       It is also evident from the respondent’s testimony that when she received and signed the contract in October, she was aware of the contents of the letter that Mkhize had been sent to the municipal manager.[1] In other word, the circumstances under which she was employed.

[10]    It was also Rambath’s testimony that the applicant had an EPWP Programme and the respondent’s contract was funded through the EPWP funding. Her salary slip records the respondent as an EPWO employee.

[11]    On 31 May 2018, the respondent’s services were ‘terminated’,[2] the applicant purporting to act in terms of the first mentioned contract.

[12]    However, prior to this event, on 2 May 2018 the respondent referred a dispute to the bargaining council. According to the referral the dispute concerned s198B of the LRA. The particulars of the dispute are described therein as follows: “Offered a fixed term contract in October 2017 with a salary of R8 794.00 but paid R2500.00. I am pregnant and the employer wants to terminate my services end of May 2018”. [Emphasis added]. The result she required was: “My contract to be converted to an indefinite period and the current salary scale”. In terms of the referral to arbitration the complaint was that: “The employer contravened s198(B) of the LRA. The employer is offering me a new contract ending May 2018”.

[13]    In addition to claiming that in law she became a permanent employee of the applicant, the respondent repeatedly testified that she was dismissed by the applicant and dismissed because she was pregnant. She also suggested this in her referral form. She did not explain how she had arrived at this conclusion. It is noted that according to her opposing affidavit, she gave birth and returned to work before her contract ended at the end of May 2018, so objectively she could not have been dismissed because she was pregnant. Notably, she was employed when she was pregnant.

[14]    I agree with the applicant that the award falls to be reviewed and set aside on the following grounds.

Jurisdiction

[15]    The arbitrator appears not to have taken this claim seriously and did not deal with it. However, the respondent at no stage withdraw her claim that she had been dismissed and that her dismissal was automatically unfair on account of the contention that she had been dismissed because she was pregnant.

[16]    The bargaining council lacked jurisdiction to adjudicate any dismissal claim, more especially an automatically unfair dismissal claim, for two reasons. First, because at the time of the referral the services of the respondent had not ended. Second, a bargaining council has no jurisdiction to adjudicate an automatically unfair dismissal claim.

[17]    The bargaining council further lacked jurisdiction to determine the section 198B dispute because at the time of the arbitration, the contract of employment had terminated. As pointed out by the applicant, in Nama Khoi Local Municipality v SALGBC (2019) 40 ILJ 2092 (LC), it was held that section 198B(5) is inapplicable if the contract has already been terminated. A dispute referred to in terms of section 198D can only be concerned with an existing employment relationship.  

Section 198B: the merits

Section 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.

(4) Without limiting the generality of subsection (3), the conclusion of a fixed-term contract will be justified if the employee-

…..

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

(h)          is employed in a position which is funded by an external source for a limited period; or

……

[18]    The evidence clearly demonstrated that the respondent was employed on a fixed term contract, the period being 20 October 2017 to 31 May 2018, and that she was employed to temporarily assist Mkhize until the applicant formally filled that vacant post following its prescribed recruitment policy for permanent employees. The evidence also revealed that she had been aware of the circumstances under which she was employed. The fact that her contract ended before a permanent appointment was made in terms of the applicant’s prescribed recruitment policy was not an issue before the arbitrator, and was neither here nor there in terms of the specifics of the dispute before the arbitrator, namely whether the respondent became a permanent employee after 3 months.   

[19]    It was also evident that the position (rightly or wrongly) was funded with funds from an external source, namely the EPWP Programme.

[20]    In these circumstances, the fixed term contract of employment concluded between the applicant and the respondent fell within the exceptions to the rule that an employee will be deemed a permanent employee of the employer after 3 months of continuous employment.    

The award concerning benefits

[21]    Even if the arbitrator had correctly found that the respondent was deemed a permanent employee, it was held in PRASA v CCMA [2020] 1 BLLR 49 (LC) that a dispute concerning the interpretation and application of section 198B had been wrongly decided in that the commissioner had ordered benefits equal to those of permanent employees to be paid to employees whose contracts were deemed indefinite in terms of section 198B(5). It held that parity of benefits does not follow automatically but needs to be determined through the referral of a separate unfair labour practice claim.

[22]    In the circumstances, the arbitrator committed material errors of law and fact which impacted on the outcome of the award, and falls to be set aside.  

[22]      I therefore made the following order:

1.         The late filing of the review application is condoned.

2.         The arbitration award dated 30 August 2018 and varied on 30 November 2018, under case number KPD051801 is reviewed and set aside and substituted with an order that the referral of the first respondent is dismissed.

3.         There is no order as to costs.                   

________________________________

Benita Whitcher

Judge of the Labour Court of South Africa

APPEARANCES:

APPLICANT:                      Adv N Mfeka, instructed by Hlela Attorneys

FIRST RESPONDENT:      Themba Mkhize Attorneys

themba@tmkhizeattorneys.co.za

hlelaattorneys@gmail.com

advnmfeka@gmail.com

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