Transnet t/a Transnet Freight Rail v National Union of Metalworkers of SA on behalf of Manku & others (2021) 42 ILJ 1948 (LAC)
Facts of the case:
The first and second respondents were employees of the Appellant Transnet and were employed on one-year fixed-term contracts in East London. Transnet renewed the employees’ contracts nine and four times respectively.
On 1 January 2015, a collective agreement between Transnet and representative trade unions was implemented in terms of which it was agreed, inter alia, that Transnet would appoint a minimum of 1 472 employees on a permanent basis using its recruitment and selection policy, and that this would be done from 1 April 2015 to 31 March 2016.
During January 2015, the employees were informed by their supervisor that their fixed-term contracts would be renewed for a further fixed period on the same terms and conditions. At the beginning of March 2015, the employees were given letters to sign in which they were required to acknowledge that their fixed-term contracts would terminate at the end of March 2015. The employees refused to sign the said acknowledgments as they claimed to be permanently employed and would not accept a further fixed-term contract renewal.
On 31 March 2015, all fixed term contract employees, including the employees in this matter, were notified that their fixed-term contracts had expired. The employees were not presented with new fixed-term contracts given their refusal to acknowledge the expiry of their previous contracts and accept a further contract renewal. The employees referred a dispute to the Transnet Bargaining Council claiming that they had been unfairly dismissed in that they held a reasonable expectation that their contracts would be renewed.
The arbitrator found that the employees had been unfairly dismissed because they had a reasonable expectation of permanent employment. Dissatisfied with the arbitration award, Transnet sought to review and set it aside, but the Labour Court dismissed the review application.
On appeal, Transnet disputed that the employees were unfairly dismissed since they had refused to accept a further renewal of their contracts on the basis that they considered themselves to be permanently employed. Furthermore, the employees bore the onus to show that they had a reasonable expectation that their contracts were to be renewed; the test to determine whether this onus had been discharged being an objective one.
In response to the employees’ submissions that they expected renewal because their contracts had been repeatedly renewed; that they were considered to be permanent employees and that they had heard the president’s announcement on television that contract employees who had worked for more than three months would be made permanent, the court found that none of these facts supported a finding that the employees had discharged the onus that rested upon them.
The court ruled that, on their own version, the employees did not expect a renewal of their fixed-term contracts, since they considered themselves already to be permanently employed. The court found that this concession was fatal to the employees’ case and it was the reason they had refused to accept that their contracts had expired and why they had refused to accept a further fixed-term contract. As with regard to the president’s announcement on employment contracts, the court ruled that it did not support the employees’ claim that they had been employed for an indefinite duration. Even if their case had been that they held an expectation that their fixed-term contracts would be renewed from 1 April 2015, which it was not, the facts and their own conduct were destructive of such a claim.
The court concluded therefore that the arbitrator had erred in finding that the employees had proved their dismissal in terms of s 186(1)(b); and found further that the Labour Court had erroneously found that facts existed which gave the bargaining council jurisdiction to entertain the dispute.
Consequently, the court upheld the appeal.