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[2002] ZALCJHB 2
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Athlhurs School v Koorts NO and Others (JR1482/01) [2002] ZALCJHB 2 (8 August 2002)
NOT REPORTABLE
IN
THE LABOUR COURT OF SOUTH AFRICA
CASE NO: JR 1482/01
In
the matter between:
ATHOLHURST
SCHOOL Applicant
And
KOORTS,
ME
N.O First
Respondent
CCMA Second
Respondent
BERGER,
TERESA
Third
Respondent
JUDGMENT
MASERUMULE AJ:
1. The
applicant seeks an order in terms of section 145 of the Labour
Relations Act. 66 of 1995, (Athe Act@) to set aside an award
made by
the first respondent in favour of the third respondent, ordering
payment to the latter in an amount of R17 5000, based
on a salary of
R3500-00 per month.
2.
The applicant is a school that caters for children with learning
disabilities and special needs. The
majority of these children suffer
from one syndrome or another.
3.
The third respondent applied for a position as a teacher at the
school. She was interviewed and was offered
the position. She worked
for the applicant from 17 January 2001 until 22 or 23 February 2001.
4.
On review, the applicant has alleged that the third respondent was
employed on a fixed term contract
for a period of two weeks, which
was then extended to three weeks, as a A
trial
period
@
and
not a probationary period. The record of the proceedings at the CCMA
indicates that the applicant=s legal representative dealt
with the
matter on the basis that the third respondent was in fact on
probation.
5.
Third respondent employment with the applicant terminated on 13 March
2001. The applicant contends that
her fixed term contract expired
whereas the third respondent claimed that she was dismissed, and
unfairly so.
6.
The first respondent concluded that the third respondent had been
dismissed and that her dismissal was
both procedurally and
substantively unfair. He found that applicant=s evidence with regard
to its reasons for terminating third
respondent=s employment was
vague and that he was consequently unable to determine what the
precise reasons for her dismissal were.
However, he suspected that it
was related to third respondent=s alleged poor work performance,
which he found not have been proved.
Lastly, he found that the third
respondent was not given an opportunity to respond to whatever the
reasons were for her dismissal,
which made the dismissal procedurally
unfair.
7.
The first ground of review relates to the submission that the first
respondent failed to make a finding
as to whether or there was a
dismissal. There is no merit in this submission. Nowhere in the
record of the arbitration proceedings
does it appear that the
applicant disputed the existence of the dismissal. On the contrary,
in her opening address at the CCMA,
Ms Salojee, incorrectly referred
to as Selicky in the record, dealt in a fair amount of detail with
what is required of an employer
before dismissing an employee who is
on probation and set out applicant=s case as being that the third
respondent was indeed on
probation, that this was for a period of
three weeks and that this period was reasonable in the circumstances.
8.
The applicant=s contention that there was a trial period based on a
fixed term contract of employment
is fanciful in the extreme. The
label that the applicant now seeks to attach to the Atrial@
period does not change its true nature. Indeed,
Mrs Atkinson, the principal at applicant, made no reference to a
fixed term contract.
Her evidence clearly indicates that the
three-week period was meant to enable the applicant to determine
third respondent=s suitability
as a teacher t the school. That is a
probationary period. Termination of the employment contract
constitutes a dismissal. This
first ground of review must accordingly
fail.
9.
The applicant does not attack the first respondent=s finding that
having found that there was a dismissal,
such dismissal was both
procedurally and substantively unfair. In the light of the evidence,
the implied acceptance of the correctness
of this finding is well
made.
10.
The second ground of review relates to the amount of compensation
awarded to the third respondent. The first
respondent awarded
compensation in accordance with the strict terms of the provisions of
section 194(2) of the Act, read with section
194(1). The award was
made prior to the promulgation of the amendments to section 194 of
the Act.
11.
In passing, I need to commend the CCMA for having conciliated and
arbitrated this dispute within a period
of five months. This is in
keeping with the spirit of the Act to have disputes finalized as
expeditiously as possible.
12.
The applicant alleges that the third respondent was in applicant=s
employ for a period of three weeks only.
This is incorrect. It is
clear from the evidence that the third respondent continued teaching
after 31 January 2001 and only stopped
on 22 or 23 February 2001. The
decision to terminate her services was only taken later, after
another applicant for the position
that had been offered the third
respondent had completed her probationary period and was appointed on
a permanent basis. The third
respondent was thus employed for a
period of at least six weeks and not three, as alleged by the
applicant.
13.
Applicant=s evidence at the arbitration hearing that the school is a
non-profit institution was not disputed.
14.
The first respondent concluded that in his view, A
compensation
would be the appropriate remedy
.@
Whilst the award does indicate that it is but a
summary of the evidence and argument, the first respondent indicated
in the Rule
7A notice that he did not wish to add anything to the
reasons already given in the award.
15.
It is now trite that a person in the position of the first respondent
needs to exercise his discretion on
whether or not to award
compensation, before actually awarding compensation in terms of the
formula prescribed by section 194.
There is nothing in the award to
indicate that the first respondent considered first, whether or not
to exercise his discretion
in favour of awarding compensation, before
he actually did so. The factors that would have been relevant for the
exercise of his
discretion, as established in evidence, including the
fact that:
15.1
the third respondent had only been in applicant=s
employ for a period of six weeks;
15.2
in discussions between Mrs Atkinson and the third
respondent, Mrs Atkinson offered to re-employ the third respondent in
the event
that the school could find enough children to create an
extra-class for younger children whom she felt the third respondent
would
be able to cope with;
15.3
the applicant is a non-profit educational
institution, with limited resources.
16.
I am in agreement with applicant=s submission that the first
respondent did not properly apply his mind to
the available evidence
in making the award that he did. In particular, he failed to consider
whether or not he should exercise
his discretion in favour of
granting compensation, before he actually did so. In the light of the
factors that would have been
relevant in the exercise of his
discretion, the only conclusion that can be arrived at, in view of
the compensation awarded, is
that he failed to take them into
account.
17.
The amount of compensation awarded is out of proportion to the harm
inflicted on the third respondent,
cf
Roux v Rand Envelope (Pty) Ltd
(1999)
20 ILJ 2183 (CCMA) at 2188. This warrants interference by the Court.
18.
It was common cause during the arbitration hearing that the third
respondent was not paid any notice pay.
She was entitled to such
notice pay. In the absence of an agreement providing for a notice
period, section 37(1)(b) of the Basic
Conditions of Employment Act,
75 of 1997, (Athe BCEA@), prior to its amendment, provided for a
notice period of two weeks for employees
who have been employed for a
period of four weeks or more, but less than one year. The third
respondent was such an employee. In
terms of section 74 of the BCEA,
a commissioner or this court is entitled to also order the payment of
any monies which may be
due to an employee in terms of any of its
provisions when considering a dispute about the fairness or otherwise
of a dismissal..
19.
I accordingly make the following orders:
19.1
the award made by the first respondent, in so far
as it orders the applicant to pay third respondent compensation in
the amount
of R17 500-00 is hereby reviewed and set aside and
substituted with an order that the applicant must pay the third
respondent two
weeks=
notice pay in the
amount of R1750-00;
19.2
there is no order as to costs.
___________________
MASERUMULE AJ
On behalf of applicant:
Adv HM Viljoen instructed by Jeff Donenberg & Co.
Date
of Hearing:
6 August 2002
Date of Judgment:
8 August 2002