Article 44/2021

Labour Edge

What are the consequences of disavowal clauses?

With reference to Pikitup Johannesburg (Soc) Ltd v Muguto and Others (2019) 30 SALLR 186 (LC), the following consequences may be identified:

  1. In most instances, such contracts contain the standard clause expressly stating that the employee had no right to renewal or expectation of a renewal (the so-called disavowal clause). It is accepted, on the authority of Mediterranean Woollen Mills (Pty) Ltd v SACTWU (supra), that, despite these clauses, a reasonable expectation could still arise during employment if assurances, existing practices and the conduct of an employer led an employee to believe that there was hope for a renewal, whether on a temporary or an indefinite basis. Even then, these factors are still subject to an objective assessment.
  2. In the end, however, when a renewal or extension is effected, it cannot be said that, on its own, it varies the original terms and conditions of the contract for the purposes of creating or proving a legitimate expectation, unless this is expressly stated when the contract is renewed or extended.
  3. Significant with the facts of this case is that, at some point of the duration of the fixed-term contract, Muguto had been moved to another position as general manager: bulk. Even then, the letter of transfer dated 27 March 2014 had expressly stated that, other than the change in roles and reporting structures, her remuneration and other terms and conditions remained the same.

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?