The Labour Court of South Africa, Johannesburg, was recently faced with the task of taking a closer look at the reasonableness of an employee’s expectation of the renewal of his or her fixed term contract of employment. In the recent case of Njikelana v Kruger N.O and Others, an application was made to review an award made by the commissioner under the auspices of The Commission for Conciliation, Mediation and Arbitration (CCMA) in order to determine whether, in casu, the employee did have a reasonable expectation of renewal of her fixed term contract.
Background:
Ms. Njikelana (Applicant) was employed by (Third Respondent) the South African Civil Aviation Authority (SACAA) in the position of Human Resources: Generalist, more specifically on a fixed term contract dated (Contract)1 August 2015 and for a period of 12 months. The envisaged termination date was 31 July 2016. The contract was however renewed for 2 consecutive periods, the last period ending on or about 31 March 2017. Prior to Ms. Njikelana joining the SACAA, she was subjected to various verification exercises, including but not limited to, criminal checks.
On or about July 2016, the Third Respondent requested a service provider to conduct an additional verification on the Applicant and it was established that the Applicant had a criminal record. The Third Respondent subsequently proceeded to invite the Applicant to a meeting, wherein the Applicant indicated that she had no past, current and or pending criminal record(s) against her. The Third Respondent informed the Applicant that she is under further investigation as the verification exercise to the contrary indicated that she had a criminal record, despite the Applicant denying any knowledge to that effect.
On 8 February 2017, the Third Respondent advertised two positions and the Applicant proceeded to apply for a permanent position as Human Resources: Business Partner. On 13 March 2017, the Applicant was interviewed and requested to complete a declaration form in respect of which she disclosed her criminal record. The Applicant furthermore deposed of an affidavit confirming her criminal record and the same was submitted to the Third Respondent on 27 March 2019. On 30 March 2017, the Applicant was informed that her application was unsuccessful and that her Contract would not be renewed for the third period. The Applicant referred an unfair dismissal to the CCMA in terms of Section 186(1)(b) of the Labour Relations Act (LRA).
CCMA:
The Commissioner recorded the issue in dispute to be whether the Applicant had a reasonable expectation that her Contract would be renewed or extended in terms of Section 186(1)(b) of the LRA. The Commissioner held that the Applicant did not meet the requirements of section 186(1)(b) of the LRA as she was appointed in a temporary position and this position was no longer available and further to that the Applicant did not have the desire that the Contract be renewed on the same terms and conditions as she was applying for a new position.
The issue of dishonesty was also scrutinized by the Commissioner and it was found that it was highly improbable for the Applicant to have forgotten about her criminal record during her interview. The commissioner indicated that the Applicant had kept quiet about her criminal record and only disclosed this material information on 23 March 2017, 5 months later than the first interview held. The Commissioner subsequently dismissed the Applicant’s claim.
Labour Court:
The issue before the CCMA was whether the Applicant was dismissed in order for the CCMA to entertain the matter before it. Dismissal is defined in section 186 (1)(b) of the LRA:
- Dismissal means that-
- an employer has terminated employment with or without notice;
- an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew on less favorable terms, or did not renew it.
The Court in the Njikelana Case had two questions before it:
1. The existence of a reasonable expectation to renew a fixed term contract;
2. the Applicant’s non-disclosure of her criminal record.
The Court held that the Applicant’s reliance on Section 186 (1)(b) of the LRA did not cover a reasonable expectation to be appointed in a permanent position but rather the reasonable expectation to renew a fixed term contract that has expired. The Applicant’s claim that her non-appointment to the permanent position was an unfair dismissal was viewed as meritless.
The Court further held that the Applicant failed to produce evidence that there was an expectation created by the Third Respondent that the Applicant’s Contract would be renewed. Emphasis was also placed on the Applicant’s criminal record and her failure to immediately disclose it to the Third Respondent after becoming aware of such a record and or after being given the opportunity to communicate the criminal record to the Third Respondent. The Applicant, knowing that she had a criminal record, could not have been regarded as having a reasonable expectation of the renewal of the Contract and or being placed in a permanent position.
The Court confirmed the finding of the Commissioner that it could not reasonably be expected of the Third Respondent to renew or appoint the Applicant given that she was dishonest in failing to come clean and disclose her criminal record. The Commissioner found that the requirements of Section186(1)(b) of the LRA have not been met and the Applicant failed to prove that she had a reasonable expectation of renewal. The Court dismissed the Applicant’s application to review the award made by the Commissioner.
Employees relying on an unfair dismissal based on Section186(1)(b) must prove the existence of a reasonable expectation of renewal of a fixed term contract that has expired. Where employees fail to disclose material information such as a criminal record to their employers, the employee cannot be regarded as having a reasonable expectation of renewal. The expectation as set out in Section186(1)(b) of the LRA further relates to fixed-term contracts that have terminated and does not extend beyond that to an entirely new position.
ABOUT THE AUTHOR
Anel Pistorius obtained her LLB degree at the University of Pretoria. Anel started her articles at a firm specializing in general litigation in various fields of the law. Anel furthered her career in Labour Law when she was appointed as a Legal Advisor at SEESA Pretoria.