UASA – The Union obo Maribe T.A.D and 13 Others v Coca Cola Fortune Pty Ltd and Others

The applicants (14 employees earning below the BCEA threshold) were employed by Coca-Cola on fixed-term contracts that terminated on 31 January 2017. Their contracts had been successively renewed on average four times at different stages between 2011 and 2016. They referred an unfair dismissal dispute to the CCMA under section 186(1)(b) of the LRA, contending they held a reasonable expectation of indefinite employment because the successive renewals contravened section 198B(3) of the LRA. Coca-Cola argued the fixed-term contracts were justified by operational requirements (volume increases, seasonal reasons, special projects, leave coverage) and were permitted by a Collective Agreement with FAWU entered on 11 March 2015. The applicants were not members of FAWU and disputed the Collective Agreement applied to them. The CCMA Commissioner found the Collective Agreement did not bind the applicants but that section 198B was complied with, the fixed-term contracts were valid, and the applicants were not dismissed as their employment ended through effluxion of time.

• Whether the CCMA Commissioner erred in finding the Collective Agreement did not apply to the applicants
• Whether the Commissioner properly applied section 198B of the LRA in determining if there was a justifiable reason for the fixed-term contracts
• Whether the successive renewal of fixed-term contracts contravened section 198B(3) of the LRA
• Whether the applicants' employment should have been deemed to be of indefinite duration under section 198B(5)
• Whether a dismissal was established under section 186(1)(b)(ii) of the LRA
• Whether the CCMA had jurisdiction to adjudicate the dispute
• The standard of review applicable to jurisdictional determinations

The review application was dismissed with no order as to costs.

1. For a collective agreement to exclude the application of section 198B under section 198B(2)(c), all three conditions in section 23(1)(d) of the LRA must be fulfilled for the agreement to bind employees who are not parties to it. 2. Where fixed-term contracts explicitly state justifiable reasons for fixing the term (such as addressing fluctuating operational requirements, volume increases, or temporary replacements) and this is supported by evidence, such contracts comply with section 198B(3), (4), and (6) of the LRA. 3. Where there is no contravention of section 198B, employees cannot establish a reasonable expectation of indefinite employment under section 186(1)(b)(ii), and no dismissal occurs when the contracts terminate through effluxion of time. 4. Section 198B can only be applied as part and parcel of an unfair dismissal dispute under either section 186(1)(a) or 186(1)(b) of the LRA. 5. Where the CCMA determines it lacks jurisdiction, the Labour Court must determine this de novo on review, though a material error of law can also render an award both incorrect and unreasonable.

The Court noted that while the Commissioner misdirected himself by considering clauses from the Recognition Agreement rather than the Collective Agreement when determining whether it bound the applicants, this procedural error did not affect the ultimate outcome because even had the Commissioner properly considered the Collective Agreement itself, the conclusion would have been the same. The Court emphasized that the Commissioner should have given more detailed consideration to the evidence when evaluating whether there was justifiable reason for the fixed-term contracts, noting he "failed dismally short" in such evaluation and "did not delve into the detail that was required", though his ultimate conclusion was nonetheless correct. The Court exercised its discretion under section 162(1) of the LRA not to award costs despite dismissing the review application.

This case clarifies the interaction between section 186(1)(b) (deemed dismissal due to non-renewal of fixed-term contracts) and section 198B of the LRA (regulating fixed-term contracts). It confirms that section 198B can be applied as part of an unfair dismissal dispute when employees contend they had an expectation of indefinite employment. The case establishes that for a collective agreement to exclude the application of section 198B under section 198B(2)(c), it must meet all requirements of section 23(1)(d) to bind non-party employees. The judgment provides guidance on what constitutes justifiable reasons for fixed-term contracts under section 198B(4), including volume increases, seasonal requirements, and temporary replacements. It demonstrates the evidentiary requirements for establishing that successive renewals of fixed-term contracts contravene section 198B(3), and emphasizes that proper justification in the contracts themselves and supporting evidence can defeat such claims. The case also addresses the standard of review for jurisdictional determinations by the CCMA.