About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2019
>>
[2019] ZALAC 56
|
|
Ubuntu Education Fund v Paulsen N.O and Others (PA12/17) [2019] ZALAC 56; [2019] 11 BLLR 1252 (LAC); (2019) 40 ILJ 2524 (LAC) (15 August 2019)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case no: PA 12/17
In the matter between:
UBUNTU EDUCATION
FUND
Appellant
and
PAULSEN N.O
First
Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
Second
Respondent
NATIONAL EDUCATION
HEALTH AND ALLIED
WORKERS
UNION Third
Respondent
ZANDILE SONYAYA
Fourth Respondent
Heard:
14 February 2019
Delivered:
15 August 2019
Summary: Employee on
probation dismissed for poor work performance – commissioner
finding that dismissal substantively unfair
as employee made
permanent after successfully completing the probationary period.
Court finding that evidence showing that probation
period implicitly
extended to allow performance appraisal and that employee
underperforming – Appeal upheld and Labour Court’s
judgment set aside.
Coram:
Tlaletsi JA, Murphy and Savage AJJA
JUDGMENT
MURPHY AJA
[1]
The appellant appeals against the judgment of the Labour Court
(Mahosi AJ) dismissing
its application to review and set aside the
award of the first respondent (“the commissioner”)
reinstating the fourth
respondent (“Sonyaya”) in its
employ.
[2]
The appellant is a non-profit organisation engaged in various
programs aimed at assisting
children with the long term goal of
eradicating poverty. Sonyaya was employed as a supply chain
coordinator with effect from 18
August 2014.
The position
involved management of the procurement function.
[3]
Sonyaya’s employment was subject to a six-month probationary
period. The offer
of employment dated 4 July 2014 stated:
‘
The
first six (6) months of your appointment will be a probationary
period. Upon the successful completion of your probationary
period,
you will receive confirmation of your appointment as a permanent
staff. Performance appraisals will be conducted during
this 6 month
period by your supervisor’.
[4]
Clause 1.2 of the
contract of employment
provided:
‘
The
employee is appointed for a probationary period of 6 (six) months
during which period the Employee will be assessed for confirmation
of
his suitability of employment…’
[5]
Sonyaya reported to Taryn Mthimkulu (“Mthimkulu”), the
chief financial
officer.
[6]
Sonyaya was appointed to achieve four primary Key Performance Areas
(“KPA’s”).
It is difficult to ascertain from the
record precisely what these four KPA’s entailed. However, it is
common cause that Sonyaya
was unable to achieve the four KPA’s
and therefore it was agreed to reduce her KPA’s from four to
one with effect from
8 October 2014 in order to allow her to
concentrate on the administrative tasks of the job. Mthimkulu then
hired a temporary administrator
(Loyce) to do the procurement while
Sonyaya familiarised herself with the administration systems. This
was intended to be a temporary
arrangement aimed at giving her the
opportunity to find her feet.
[7]
Nomfundu Mapuma (“Mapuma”), the quality assurance manager
was tasked to
supervise Sonyaya and Sheldon Van Heerden (“Van
Heerden”), the financial accountant, provided her with
technical support.
[8]
At a meeting on 5 December 2015, Sonyaya was apprised of concerns
about her performance
and it was agreed that the four KPA’s
would be reinstated with effect from 11 December 2014. The minutes of
the meeting give
some insight into the apparent difficulties: The
relevant part of the minutes reads:
‘
Zandi
had experienced difficulty in balancing her duties which included
going out to purchase goods and doing her admin. At the
time she did
not have a clear understanding of what other roles are in the finance
team, as a result, the admin duties suffered….Loyce
started
assisting Zandi with the purchasing; going out to procure while Zandi
would do the paperwork and get a better understanding
of the
processes and/or procedures and the roles of the finance team…There
have been some complaints within the team that
Zandi does not capture
PO’s (purchasing orders) on time or when requested in order for
payments to be made, and this has
resulted in delays.’
[9]
On 11 December 2014, Sonyaya attended a meeting with Mthimkulu,
Mapuma and Craig Pannell
(“Pannell”), the human resources
manager, where Sonyaya was again apprised of concerns about her
performance and given
guidance and assistance to improve. The
relevant part of the minutes of this meeting reads:
‘
It
has been four months into the probation period since 18 August 2014.
The six months of probation will be ending in February 2015.
The job
description was reduced to one KPA to assist Zandi to cope with the
demands of the position. In the next two months Zandi
needs to
perform the work at the level that it is required. There needs to be
improvement on Zandi’s performance and ability
to manage the
pressure that comes with the position. The position requires that
Zandi performs both tasks of procuring goods and
services and the
administration that comes with procurement.’
[10]
The minutes then set out precisely the areas requiring improvement.
They included: i) ensuring
that procurement processes were followed
and that purchase orders were done before the actual procurement took
place; ii) weekly
reports of outstanding requests to be submitted on
time with full explanation of any delays; iii) dealing with other
departments
in a more positive and pleasant manner; iv) not to become
involved in the delivery of goods; v) the preparation of weekly,
monthly
and quarterly plans to ensure effective time management; vi)
capturing of purchase orders to be done weekly and communicated to
the financial accountant; and vii) communicate more efficiently by
responding to e-mails, getting more details or clarity on requests
in
order to speed up the process and deliver on time.
[11]
A follow-up meeting was held on 16 January 2015, with the same
parties in attendance as in the
meeting held on 11 December 2015. The
concerns about performance were once again highlighted. The minutes
stated:
‘
This
is a follow up meeting from the meeting of the 11 December 2014. It
is crucial to continue having these meetings to ensure
that Zandi
performs the job as required’
[12]
Other areas of concern were raised, pointing to some incapacity in
performance. These were: i)
the need to engage suppliers more
effectively and to evaluate their performance, quality of
goods/services, time of delivery etc.;
ii) when buying in bulk, to
check on the expiry date of the batches of goods that she procures;
and iii) work off a checklist when
communicating with suppliers. The
minutes also record that Sonyaya still faced challenges in reporting
properly. The weekly report
was not being submitted on time for
review; and the reports were not of the required standard. She was
directed to check her work
and spelling; and most importantly to
provide a detailed explanation for requests that were not delivered
on the required date.
It was further agreed that Mapuma would do
weekly performance reviews to evaluate Sonyaya’s performance.
[13]
The appellant conducted five performance appraisals of Sonyaya
between 27 January 2015 and 3
March 2015. The appraisals consisted of
a comprehensive evaluation in which her performance was measured and
scored against fixed
criteria by Mapuma. Sonyaya scored 33%, 33%,
43%, 47% and 40%, respectively, in her five performance appraisals.
[14]
Performance appraisals were done in respect of every employee
employed by the appellant over
the same period. A comparative
analysis done in March 2015 revealed that Sonyaya was on average the
worst performer in the company
by a significant margin –
scoring an average of 43.3%
[15]
The appellant accordingly decided to convene a Poor Work Performance
(“PWP”) hearing.
On 6 March 2015, the appellant issued
Sonyaya with a notice to attend a PWP hearing. The relevant part of
the notice read:
‘
Please
be advised that you are required to attend an investigation into your
work performance in your current job functions, due
to the following:
Your performance has been well below the required standards for tasks
to be completed and for required outputs.
This has been dealt with
through measurement of your performance and constant coaching over
the past 6.5 months since you started
with Ubuntu. You are thus not
reaching the required performance standards.’
[16]
The minutes of the hearing reflect that Mapuma, Van Heerden and
Mthimkhulu made presentations
regarding Sonyaya’s performance.
They concluded that Sonyaya lacked the understanding and ability to
carry out her assigned
tasks despite having been given assistance and
a reasonable opportunity to improve. The minutes reflect that Sonyaya
conceded that
she had been struggling with the job and complained
that she “got very tired from driving and spending time getting
the requested
items”. She disagreed with the first two
performance appraisal scores of 33% but accepted the other three
scores of 43%,
40% and 47%. Sonyaya did not challenge the validity of
these scores when questioned on them during her evidence in chief at
the
arbitration. Nor did she take issue with the accuracy of the
minutes of the various performance meetings.
[17]
The appellant dismissed Sonyaya for poor work performance on 13 March
2015.
[18]
Sonyaya referred an unfair dismissal dispute to the Commission for
Conciliation, Mediation and
Arbitration (CCMA).
[19]
Mthimkulu and Van Heerden testified on behalf of the appellant at the
hearing. Mthimkulu emphasised
the fact that Sonyaya was not capable
of meeting the four KPA’s, despite efforts to accommodate her,
while her replacement
had done so with relative ease. She focused on
Sonyaya’s failure to follow the correct procedures in relation
to purchase
orders. Mthimkulu admitted that Sonyaya had to perform
functions that had previously been separated into two posts –
buyer
and supply chain co-ordinator. However, she also testified that
subsequent to the dismissal, the appellant appointed another person
as its supply chain coordinator. This person achieved the required
performance standards within two weeks.
[20]
Van Heerden testified to the fact that Sonyaya’s failure to
complete financial reports
and to capture invoice data timeously
affected his own performance. He referred also to an occasion on
which authorisation was
not given for a purchase order and an issue
concerning the non-delivery of certain goods from Daku Spar, which
the appellant paid
for. He also affirmed that driving duties were
part of Sonyaya’s procurement functions.
[21]
In her testimony, Sonyaya confirmed that she had been released from
three of her KPA’s
shortly after her appointment as she was not
coping. She explained that the reason she captured data late was that
the suppliers
were late in sending the invoices. She denied that she
had ever made an unauthorised purchase and testified that the
responsibility
to ensure that invoiced goods were delivered by Daku
Spar rested with the storeman, who had, in fact, noted the
non-delivery of
such goods and hence the appellant should not have
paid for them. She admitted that she could not cope with her
workload, but maintained
that the demands on her were unreasonable.
[22]
The commissioner held that Sonyaya’s dismissal was
substantively unfair. He concluded that
Sonyaya had become a
permanent employee when her probation ended on 18 February 2015 and
that this amounted to an indication that
the appellant was satisfied
with her performance and that she had satisfactorily completed her
probation period. He accepted though
that Sonyaya had not been able
to perform her four KPA’s and required assistance from Loyce to
perform the functions of her
job description.
[23]
Although the commissioner referred to the evidence of Sonyaya which
described how the performance
appraisals consisted of
self-assessments completed in consultation with her supervisor, he
rejected the performance appraisal evidence
on the basis that there
was no evidence before him of how the allocation of points was done.
Unfortunately, it is not entirely
clear from the record whether the
comprehensive performance appraisals annexed as Annexures CP 10 to CP
14 to the founding affidavit
were part of the documentary record
before the commissioner. He nevertheless referred to the scores and
the comparison of all the
employees, which suggests he had sight of
them. However, the appraisals were not dealt with in testimony in a
meaningful way and
Mapuma (the supervisor) did not give evidence in
relation to them at the arbitration.
[24]
The commissioner accepted the version of Sonyaya in relation to the
late capturing of data, the
alleged unauthorised purchase and the
goods not delivered from Daku Spar but paid for, and noted that she
had not been disciplined
for any of these alleged infractions.
[25]
The commissioner concluded by questioning why Sonyaya had been made
permanent if the appellant
was dissatisfied with her performance and
held that the appellant had not properly considered sanctions or
remedies other than
dismissal. He believed that Sonyaya should have
been re-trained and her driving responsibilities removed from her job
description.
He, accordingly, reinstated her retrospectively to the
date of her dismissal.
[26]
The Labour Court refused to set aside the award on the grounds of
unreasonableness. It accepted
that Sonyaya was no longer a
probationary employee and that the commissioner had dealt properly
with the evidence.
[27]
The appellant contends that the commissioner and the Labour Court
erred in finding that Sonyaya
had successfully completed her
probation period.
[28]
The purpose of the probationary period was to provide the appellant
time to evaluate whether
Sonyaya was suitable for permanent
employment. The original intention of the contract was that the
probation period would end on
18 February 2015, six months after the
commencement of employment. However, it is clear from the evidence
that when the probation
period came to an end, the appellant was
engaged in an ongoing review and evaluation process. The minutes of
the meeting of 16
January 2015 stated that Sonyaya would be subject
to “informal weekly review…to score on her performance
to enforce
progress”. The evaluation process was not completed
by 18 February 2015 but continued until 6 March 2015. It may
reasonably
be inferred from this, as well as the subsequent events,
that the appellant intended to extend the probation period until the
review
and evaluation process was completed. It would have been
unfair in the circumstances not to have extended the probation
period.
[29]
Item 8 of the
Code
of Good Practice: Dismissal
[1]
entitles employers to require new employees to serve a probationary
period “before the appointment of the employee is confirmed”.
In terms item 8(1)(e), the employer must use the period of probation
to assess performance and give the employee reasonable assistance,
training and guidance. It envisages that the appointment normally
will only be confirmed after the employee had completed the
probationary period, and not before then. Items 8(1)(f), read with
items 8(1)(g) – (h), makes it clear that an employer is
entitled to extend the probationary period in order to complete any
performance appraisal.
[30]
Moreover, clause 1.2 of the contract of employment provides that the
employee will be assessed
during the probation period “for
confirmation of his suitability” for permanent employment. In
light of the ongoing
review and the obvious problems concerning
performance, an inference that the appellant impliedly confirmed
Sonyaya’s permanent
employment is neither plausible nor
consistent with the proven facts.
[31]
The commissioner and the Labour Court therefore erred in concluding
that Sonyaya was automatically
confirmed as a permanent employee
simply on the basis that she remained in employment after 18 February
2015.
[32]
Furthermore, the finding of the commissioner that Sonyaya’s
continued employment after
18 February 2015 indicated that her
performance was considered to be satisfactory is irrational in that
it completely ignores the
undisputed evidence of the ongoing
difficulties Sonyaya was having in meeting her KPA’s.
[33]
It is trite that the purpose of a probationary period is not only to
assess whether the employee
has the technical skills or ability to do
the job. It also serves the purpose of ascertaining whether the
employee is a suitable
employee in a wider sense. This allows
consideration of matters of “fit” – aspects of
demeanour, diligence, compatibility
and character.
[2]
Nevertheless, an employee on probation is still entitled to
substantive and procedural fairness. However, Item 8(1)(j) of the
Code
of Good Practice: Dismissal
permits a lower standard of substantive fairness. It provides:
‘
Any
person making a decision about the fairness of an employee for poor
work performance during or on expiry of the probationary
period ought
to accept reasons for dismissal that may be less compelling than
would be the case in dismissals effected after the
completion of the
probationary period.’
[34]
The provision is a clear indicator that arbitrators should hesitate
to interfere with employer’s
decisions on whether probationary
employees have attained the required performance standard, or with
the standards themselves.
[3]
[35]
The commissioner’s erroneous conclusion that Sonyaya was a
permanent employee, as opposed
to a probationary employee, impacted
on his findings in respect of substantive fairness.
[36]
It is common cause that the appellant regularly conducted performance
assessment meetings and
evaluated Sonyaya’s performance during
her probationary period. She quite evidently failed to reach the
required performance
standard on each occasion.
[37]
As stated, the probationary period was extended
impliedly or by quasi mutual assent for just over two weeks, during
which time Sonyaya
was given a last opportunity to improve.
She
clearly understood this and, in fact, at the hearing on 6 March 2015,
asked for her probationary period to be extended for another
six
months.
[38]
A number of undisputed facts indicate that Sonyaya was not meeting
the required standard. Her
KPA’s were reduced from four to one
because of poor performance.
An administrator then
had to be appointed to assist her to achieve the one KPA. She
attended no less than eight performance
meetings and appraisals
between 5 December 2015 and 3 March 2015, where she was consistently
made aware that her performance was
not up to standard. As mentioned
earlier, she scored below 50% in all five performance appraisals.
[39]
The three specific issues referred to by Van Heerden, namely: the
late capturing of invoices,
the non-delivery of the Daku Spar goods,
and the unauthorised purchase order issue can be seen as illustrative
examples in respect
of non-performance in respect of one of four
KPA’s considered in the performance appraisal process. These
issues were not
the sum total of the criteria against which Sonyaya’s
performance was measured or the only reasons why she was found to
have
performed below the required performance standard, as her
counsel would have us accept.
The evidence in
its totality reveals a performance problem that sufficiently
justified the appellant’s decision, after extensive
evaluation,
counselling and guidance, not to confirm Sonyaya’s suitability
for permanent appointment.
Whatever the deficiencies in the
evidence regarding the appraisal scoring, Sonyaya conceded the
accuracy of at least three of the
scores. These were consistent with
the recorded weaknesses in performance that preceded the appraisals.
[40]
It was argued on behalf of Sonyaya that the appellant should have
considered alternative employment
for Sonyaya as dismissal is a last
resort, especially since it seemed that the workload might have been
onerous. The evidence that
Sonyaya’s replacement was able to
cope with the workload of the position was not challenged. The job
was advertised with
specified KPA’s and the appellant had no
obligation to re-write the job description. It reasonably set the
criteria for the
position to suit its particular needs. It is a
non-profit organisation with relatively limited resources. It cannot
be expected
to amend the requirements of an advertised position to
accommodate the limitations of a probationary employee who proves
unsuitable.
The commissioner hence erred in assuming in effect that
he was entitled to redefine the eligibility criteria for the
position.
[41]
In the premises, the commissioner misdirected himself in relation to
the applicable standard
of substantive fairness in relation to the
dismissal of probationary employees. He failed to apply the
provisions of Item 8(1)(j)
of the
Code of Good Practice: Dismissal
and to observe due deference, with the result that he misconceived
the nature of the enquiry and arrived at an unreasonable result.
The
Labour Court accordingly erred in upholding the award.
[42]
Fairness dictates that costs should not be awarded in this case.
[43]
In the premises, the appeal succeeds and the following order is made:
‘
The
award issued by the first respondent dated 8 October 2015 is reviewed
and set aside and is substituted with an order that the
dismissal of
the fourth respondent was substantively and procedurally fair.’
______________
JR Murphy
Acting
Judge of Appeal
I agree
________________
P Tlaletsi
Judge
of Appeal
I agree
__________________
K Savage
Acting
Judge of Appeal
APPEARANCES:
FOR THE APPELLANT:
RJC Orton
Instructed by Snyman
Attorneys
FOR THE THIRD AND FOURTH
RESPONDENTS: Adv TMG Euijen SC
Instructed
by Thaanyane Attorneys
[1]
Schedule 8 of the Labour Relations Act 66 of 1995 (“the LRA”).
[2]
Le Roux and Van Niekerk:
The
South African Law of Unfair Dismissal
(Juta 1994) 71-71
[3]
J Grogan:
Workplace
Law
(10
ed Juta 2009) 258