NON - STANDARD EMPLOYMENT UPDATE

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Ginger Carson
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NON - STANDARD EMPLOYMENT UPDATE Issue 4 In this issue we look at the recent arbitration awards dealing with the interpretation of the deeming provision of indefinite employment in section 198B (5)

1 NON - STANDARD EMPLOYMENT UPDATE Issue 4 In this issue we look at the recent arbitration awards dealing with the interpretation of the deeming provision of indefinite employment in section 198B (5) of the LRA, as amended applicable to fixed-term contract employees who earn below the threshold, currently set at R per annum. We also note a significant decrease in CCMA caseload for section 198-matters in comparison to the previous quarter (October to December 2015). The same trend is also noted in the caseload of bargaining councils utilising the CCMA case management system on section 198-matters. The South African Local Government Bargaining Council (SALGBC) and the General Public Service Sectoral Bargaining Council (GPSSBC) have their own case management systems and thus their statistics are not provided in this issue.

S ummary of arbitration awards dealing with the interpretation of the deeming provision of indefinite employment In an arbitration under the auspices of the SALGBC involving IMATU obo P.

2 S ummary of arbitration awards dealing with the interpretation of the deeming provision of indefinite employment In an arbitration under the auspices of the SALGBC involving IMATU obo P. Relefolo and the Tlokwe Local Municipality (under case number NWD and award dated 25 February 2016), part-time Commissioner and Bargaining Council (BC) panellist Marleze Blignaut (Blignaut) dealt with a matter involving the conclusion of a fixed-term contract on 18 December 2013 for the post of Clerk: Debt Collection Commissioner Eleanor Hambidge Department. The fixed-term contract between Mr. Relefolo and the Tlokwe Municipality was extended on numerous occasions (at least 10 times) and eventually terminated on 31 July When Mr. Relefolo applied for the post of Senior Clerk: Debt Collection which was eventually advertised, he was not shortlisted. The reason advanced for not shortlisting him was his lack of work experience. At the arbitration, Mr. Relefolo through his union sought an order for indefinite employment as from 1 April 2015 as provided for in section 198B (5) of the LRA, as amended, but later changed the relief sought to compensation. Blignaut did not join the successful incumbent in the position of Senior Clerk: Debt Collection (one Erasmus) as she inter alia held that the matter before her involved the rights of Mr. Relefolo in terms of section 198B of the LRA, as amended and not those in terms of the unfair labour practice jurisdiction of the SALGBC. Blignaut found that the Tlokwe Municipality failed, based on the evidence before her, that a valid fixed-term contract was entered into with reference to the requirements therefor as set out in section 198B of the LRA, as amended. If it had been the true intention of the Tlokwe Municipality to appoint Mr. Relefolo until such time the position is filled with a more suitable candidate, it should have been recorded as such in the fixed-term contract, especially the renewals thereof which were occasioned after 1 January 2015 and consensus between the parties should have been reached on this aspect, which based on the evidence before Blignaut, never happened. Accordingly, Blignaut found that the deeming provisions of indefinite employment as provided for in section 198B (5) finds application in that no valid fixed-term contract was concluded or renewed. Blignaut also found, based on the evidence before her, that an unfair dismissal had occurred in July 2015 and awarded compensation in an amount of 8 months remuneration.

3 We are advised that the arbitration award in this matter has been taken on review and we are awaiting the judgment of the Labour Court. In another matter under the auspices of the SALGBC, SAMWU obo P. Bantam & 15 Others (the Applicants) and the Khai-Ma Local Municipality under case number NCD and award dated 24 March 2016, part-time CCMA Commissioner and BC panellist Lekuka More (More) was called upon to decide as to whether the deeming provision of indefinite employment as provided for in section 198B (5) of the LRA, as amended finds application. Although the Auditor- General and Public Protector had declared the appointments of the applicants as irregular as such appointments were in contravention of section 66(3) of the Municipal Systems Act, it would seem that the Municipality had disregarded such findings by both the Auditor-General and the Public Protector by extending the contracts of the applicants for more than 3 months. The Municipality argued at the arbitration before More that their appointments were null and void and thus the applicants should not be entitled to any relief. More considered the applicants to be employees based on the conduct of the Municipality and furthermore did not find that any justifiable reason had existed to fix the term of their contracts and accordingly held that the deeming provision of indefinite employment as provided for in section 198B (5) was applicable as from the inception date of their respective contracts. SECTION 198 CASES REFERRED (JANUARY MARCH 2016) ISSUE EL PE FS JB EK TW KZN LP MP NC NW WC HO NATIONAL S198A S198B S198C S198D TOTAL The number of cases has decreased in comparison to 177 during the third quarter of the 2015/16 financial year.

4 CASE REFERRALS BY REGION EL PE FS EK JB TW KZN LP MP NC NW WC HO SECTION 198 CASES HEARD AND OUTCOMES (JANUARY MARCH 2016) SECTION 198 CASES HEARD OUTCOMES OF SECTION 198 CASES HEARD Pre-Conciliation 7 Unresolved 109 Conciliation 127 Settled 71 Arbitration 134 Withdrawn 40 In Limine 14 Postponed/ Part-Heard 34 Con- Arb 31 Out of Jurisdiction 24 Rescission 6 Dismissed 11 Pending Outcome 6 Awards Rendered 24 Total The number of cases has decreased in comparison to 341 cases heard during the third quarter of the 2015/16 financial year.

5 BARGAINING COUNCILS SECTION 198 CASES REFERRED (JANUARY MARCH 2016) Bargaining Council Issue Count Civil Engineering Industry Fixed term contracts with employees earning below earnings threshold 1 Chemical Industry Fixed term contracts with employees earning below earnings threshold 1 Chemical Industry Interpretation or application of sections 198A, 198B or 198C 2 Food, Retail, Restaurant, Catering and Allied Trades Fixed term contracts with employees earning below earnings threshold 1 Industries East London Fixed term contracts with employees earning below earnings threshold 1 Industries Free State Fixed term contracts with employees earning below earnings threshold 1 Industries Gauteng Fixed term contracts with employees earning below earnings threshold 2 Industries Gauteng Interpretation or application of sections 198A, 198B or 198C 5 Industries KZN Interpretation or application of sections 198A, 198B or 198C 1 Motor Industry Cape Town Fixed term contracts with employees earning below earnings threshold 2 Motor Industry Cape Town Interpretation or application of sections 198A, 198B or 198C 1 Motor Industry Pretoria Fixed term contracts with employees earning below earnings threshold 1 General Public Service Fixed term contracts with employees earning below earnings threshold 1 Public Health and Social Development Fixed term contracts with employees earning below earnings threshold 2 Road Freight and Logistics Industry Fixed term contracts with employees earning below earnings threshold 1 Road Freight and Logistics Industry Interpretation or application of sections 198A, 198B or 198C 6 Total 29

EMPLOYMENT EQUITY UPDATE

EMPLOYMENT EQUITY UPDATE Issue 5 The CCMA continues to receive a high volume of employment equity case referrals and requests for equal pay training interventions. In this issue we look at some of the