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
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
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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