In the recent Labour Appeal Court case of Joseph v University of Limpopo & Others (2011) 32 ILJ 2085(LAC), the contentious issue of creating a legitimate expectation of renewal of a fixed-term contract was again revisited.

The facts are briefly that Joseph (an Indian national) was employed on a 3 year fixed-term contract as a senior lecturer at the University. During his tenure, he created 2 specialist language courses which he played a pivotal role in maintaining. At the end of his term Joseph's position was advertised. Joseph's work permit also reached its expiry date and the Vice Chancellor of the University applied to the Department of Home Affairs for a three month extension. The objective was to buy the University enough time to advertise the position and complete the recruitment process. The position was advertised and Joseph was interviewed. Joseph was not appointed to the position and another candidate, Dr Dlamini-Sukumane, was appointed instead.

Joseph referred the matter to arbitration on the basis that he was unfairly dismissed based on section 186(1)(b) of the Labour Relations Act 66 of 1995 (LRA). This section states that a dismissal occurs when 'an employee reasonably expected the employer to renew a fixed-term contract of employment on same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it.'

The arbitrator found that the dismissal was procedurally and substantively unfair and awarded that Joseph be reinstated with backpay.

The University took the arbitration award on review to the Labour Court which found that, because the arbitrator did not afford Dr Dlamini-Sukumane (the successful candidate) an opportunity to be heard, the arbitrator committed a gross irregularity. The Labour Court did not consider any of the other grounds that the University tendered as being reviewable as it found the above ground to be decisive. The arbitration award was reviewed and set aside with costs.

The crisp issues focussed on by the Appeal Court were the whether the non-joinder of the successful candidate was irregular and whether section 19(2) of the Immigration Act 13 of 2002 deprived Joseph of a legitimate expectation of renewal.

It was common cause that Dr Dlamini-Sukumane resigned prior to the arbitration. The Appeal Court found that the court a quo erred by reviewing and setting aside the arbitration award on the ground of non-joinder of Dr Dlamini-Sukumane and relied on the case of Gordon v Department of Health: KwaZulu-Natal, in coming to its finding.

Section 19(2) of the Immigration Act, provides that a general work permit may be issued to a foreigner if, from the employer's perspective, despite a diligent search, he or she has been unable to employ a local person. The University argued that, in view of this section, Joseph could not have reasonably believed that there was no South Africa citizen with an equivalent qualification who could fill the position. The Appeal Court held that the above section was not a factor which would have prevented Joseph from having a legitimate expectation of renewal of his contract as this section would only come into effect once the University takes the decision to employ the foreign candidate.

The Appeal Court set aside the order of the Labour court and replaced it with an order that the application for review be dismissed with costs.

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