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[2011] ZALCJHB 105
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Independent Newspapers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (J1353/06) [2011] ZALCJHB 105 (2 December 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO: J1353 / 06
In the matter between:
INDEPENDENT
NEWSPAPERS (PTY) LTD
….................................
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
…....................................
First
Respondent
MTHETWA S N.O
…...................................................................
Second
Respondent
MEDIA WORKERS ASSOCIATION
OF SOUTH AFRICA
…...................................................................
Third
Respondent
MAKHALE E.T
….........................................................................
Fourth
Respondent
Heard
:
19 October
2011
Delivered
:
2 December
2011
Summary : Review - test not unreasonableness
per se
but whether the finding could not have been made by a reasonable
decision-maker – application dismissed.
JUDGMENT
BHOOLA J
Introduction
This is an application in terms of section 145 of the Labour
Relations Act 66 of 1995 (the Act), for the review and setting aside
of the arbitration award issued by the second respondent (the
arbitrator) dated 11 May 2006 under case number GAJB 17035-05.
Various preliminary points are made in the pleadings relating to
condonation applications by both parties. The applicant seeks
condonation for the late filing of its review, application for
condonation, the record and its replying affidavit and the fourth
respondent seeks condonation for the late failing of her answering
affidavit. At the hearing the parties agreed to proceed with
the
merits and further agreed that the condonation applications should
be determined only insofar as they bear relevance to the
costs of
these proceedings.
Background facts
The respondent was employed by the applicant, a newspaper publishing
company, on 2 January 1995 as a telephone sales consultant.
She was
required to sell advertising space to potential clients and received
a month’s training on her duties at the commencement
of
employment.
All sales consultants are subject to sales targets determined by the
applicant and are expected to contribute to the overall
sales
volumes and revenues of the applicant’s newspapers.
The applicant was dissatisfied with the fourth respondent’s
work performance and in April, May and October 2003 held discussions
were held with her in this regard. Following each discussion a
letter was issued to her confirming her poor performance.
On 13 November 2003 the respondent received a recorded warning for
poor work performance after she typed an advertisement for
the
in
memoriam
section of the classifieds incorrectly, causing the
applicant embarrassment as well as some financial loss.
In April 2004 the fourth respondent was again counselled and warned
that she would be subjected to a disciplinary process if
she failed
to improve her performance. She received further letters about her
performance in following this meeting and again
in May 2004.
On 24 June 2004 she was issued with a final written warning valid
for 12 months for “poor work performance – placing
a
pets sale advert in the Deaths column and not achieving target since
July 2003.”
The fourth respondent was moved from the general classifieds
advertising division to the property advertising division around
February 2005.
On 5 May 2005 the fourth respondent was issued with a notice to
attend a disciplinary enquiry at which she was charged as follows
:
“[p]oor work performance in that you have not met your
contractual obligations to the company by not achieving your targets
since July 2003”. She was found guilty and dismissed on 19 May
2005. She referred a dispute concerning her unfair dismissal
to the
first respondent, which was arbitrated on 9 May 2006.
Grounds of review
The applicant relies on the grounds of review discussed below and
submits that the award is unreasonable and that the arbitrator
committed misconduct by failing to apply her mind to the evidence.
The arbitrator’s finding that the applicant ought to have
complied strictly with its disciplinary code is unreasonable
. Mr
Botes submitted that it was the high water mark of the fourth
respondent’s case that the interventions to which she
was
subjected did not constitute performance counselling as envisaged in
the Act. However, the applicant submitted that the intention
of the
Act was to ensure that an employee is not taken by surprise but
should be cautioned to improve her performance failing
which adverse
consequences could result. It cannot be disputed that this is in
essence what the applicant did. In this regard
the applicant submits
in its heads of argument that despite not labelling the discussions
it held with the respondent as “counselling
sessions”
and despite not complying to the letter with its disciplinary code,
it nevertheless followed a process. In substance
what the applicant
did was to counsel her in the sense that the content of the
discussions was precisely what it would have been
had they been
formal counselling sessions in line with the disciplinary code. The
applicant had no less than five discussions
about the respondent’s
performance with her, and a letter was issued to her following each
discussion. It was not disputed
that the applicant had set
performance standards and that the respondent was aware of these.
This constituted substantial compliance
with the disciplinary code
in that the applicant did what it was required to do i.e. follow
some process whereby the fourth respondent
was made aware of her
failure to perform, and given adequate training and an opportunity
to address the problem. The applicant
assessed her performance over
a period of at least two years and found it to be poor
notwithstanding training afforded to her,
an opportunity to improve,
an invitation to approach management with suggestions, and a
transfer to a different division with
sufficient opportunity to meet
the performance standards in the new division. The applicant gave
her more than three months to
adjust even though she continued to
perform the generic duties involving in selling advertising space.
There was no further training
that could have assisted her to do a
job her peers had no difficulty with. There was no evidence moreover
that the respondent
was prejudiced by being unrepresented during the
discussions. She did not dispute her failure to perform nor did she
seek representation
at the discussions at any stage. Moreover, there
is no obligation on the applicant to inform her about her procedural
rights
and she had not prior to her dismissal raised this issue.
Therefore, the failure to comply strictly with the disciplinary
code,
it was submitted on behalf of the applicant, is not finally
determinative of the issue of procedural fairness. The arbitrator’s
finding in the circumstances that a fair procedure was not followed
is unreasonable and is not sustainable on the evidence before
her.
The finding that the fourth respondent’s failure to perform
was due to circumstances beyond her control is unreasonable
. The
applicant submits that even though the fourth respondent refused to
deal with the adult content adverts on account of her
religious
beliefs, Mrs Lambert, the Classifieds Manager at the Gauteng Region
of the applicant, testified that these adverts
accounted for only
15-20% of her sales target. She had achieved only 40% of her target,
resulting in loss of revenue and for
the period June 2004 to April
2005 she averaged only 68% of her target. Despite her move to the
property division she still failed
to reach her targets. Lambert
conceded that where other employees failed to meet their targets (as
in the case of Damian Willet),
they did not fail by the same margin
as the fourth respondent. Since there was no evidence that the
performance standard was
irrational or unfair, it was unreasonable
of the arbitrator to substitute her own judgment for that of the
applicant. Mr Botes
submitted on behalf of the applicant that in
considering the arbitrator’s finding on the issue of whether
the fourth respondent
was given a sufficient opportunity to meet the
performance standard, the applicant submitted that she could have
been under no
misapprehension that her performance was being
monitored. She was informed on each occasion that she could seek
assistance on
any issue but did not avail herself of the opportunity
to do so. She also received training at the commencement of her
employment,
and simply took no proactive steps to address her poor
performance. Even at the time of her transfer to the new division in
January
2005 she was aware of the standard she would be measured
against but continued to fail to meet performance targets for a
period
of three months, not marginally but grossly so when compared
to her peers. Indeed Mr Botes submitted that if the arbitrator had
applied her mind to this evidence she would have found that the
fourth respondent was in fact guilty of gross misconduct.
The finding that the applicant had been inconsistent in the
application of the standard since Damian Willet had not been
disciplined
for failing to meet the performance standard, is
unreasonable
. The applicant submits that the finding of
inconsistency could not be reached since a number of factors
differentiate the fourth
respondent from Willet and although his
performance also fell short, this was not to the same extent as the
fourth respondent’s.
The arbitrator essentially reached a
conclusion without having regard to the facts, which were that
Willet had not been in employment
for the same length of time, nor
had he been repeatedly disciplined as the fourth respondent was. She
respondent had not been
performing to the required standards since
2002 and was on a final written warning at the time she was
dismissed. A reasonable
commissioner considering the clear grounds
of differentiation between the employees to which the fourth
respondent was compared
could not have reached this conclusion.
The finding that the fourth respondent’s failure to perform
was influenced in part by illness caused by pressure to perform,
is
entirely unsupported by any evidence and accordingly unreasonable.
Mr Botes submitted that it was unjustified for the arbitrator have
placed as much emphasis as she did on the evidence concerning
the
alleged stress-induced illness of the respondent. This conclusion
appears to be based entirely on a remark she made during
her
examination in chief and did not formally form part of her case.
There was accordingly no evidence before the arbitrator
on the basis
of which she could reasonably have concluded that her
non-performance was due to a stress related illness.
Merits of the review
Mr Goldberg submitted on behalf of the respondent that she had
already been penalised by effectively losing four years’
salary as a result of the applicant being ordered to re-employ
instead of reinstate her with full retrospective effect. The
arbitrator ruled that although her dismissal was both procedurally
and substantively unfair, the fourth respondent was not entirely
blameless in her conduct.
Mr Goldberg submitted in relation to the first ground of review that
the only evidence at the arbitration was that of the fourth
respondent to the effect that she was not counselled, and that she
was not informed of the discussions in advance to afford her
the
opportunity to prepare nor was she advised that she could be
represented. Mrs Lambert, who was the applicant’s only
witness, admittedly played no role in these meetings. The applicant
merely alludes to the fact that the possibility of further
action
following the meetings was contained in the letters issued to her.
No reference is made to any steps regarding training,
mentoring or
other processes to correct her performance emanating from the
meetings. In fact the fourth respondent’s evidence
at the
arbitration was that she was informed that if she did not meet
targets she would be issued with another letter. This was
not
challenged. The letters themselves appear in fact to be
pro forma
letters issued to employees in these circumstances and do not
reflect any action plan or monitoring process. The arbitrator
correctly concluded therefore that there was no compliance with the
disciplinary code which required the applicant to, during
a
counselling session “attempt to identify possible solutions to
the issues giving rise to the incapacity and establish
an action
plan and monitoring process”. The letters simply stated, as
the arbitrator found, that “we will continue
to monitor your
performance”. The arbitrator correctly concluded, citing as
authority
Highveld District Council v CCMA & another
1
,
that the applicant had failed to follow its own disciplinary code
and procedure.
Notwithstanding the disciplinary code issue however, Mr Goldberg
submitted that once the respondent was moved to the new division
in
February 2005 (the original move had been envisaged to be in January
2005), the applicant should have assessed her performance
anew. The
final written warning was in the circumstances no longer relevant.
The last counselling session, even were it to qualify
as such, had
taken placed in 2004 and the charges she faced in 2005 (almost a
year later) related to the same misconduct for
which she had already
received the final written warning i.e. non-performance and
misplacing of an advert. The warning was in
itself imposed unfairly
as it had not been preceded by a hearing nor had her union been
notified of her disciplinary process
despite the fact that she was a
shop steward. The applicant’s reliance therefore on the final
written warning was misplaced
and should be considered to be simply
a red herring introduced by the applicant. The evidence before the
arbitrator was that
the fourth respondent did not receive training
at the behest of the applicant – it was common cause that the
only training
she had at the applicant’s behest was one
month’s training prior to the commencement of her employment
in 1995, i.e.
ten years prior to her dismissal. In addition, despite
being ill for more than two months just after her transfer to the
new
division she still achieved 93% of her sales target in the month
immediately following her move (i.e. March 2005). She was also
away
on training (at her own request) for five days out of a twelve day
period in which she was absent the next month. Mrs Lambert
admitted
in her evidence that absence on leave and on account of illness were
taken into account in assessing the extent to which
employees met
their targets. The fourth respondent’s evidence that the
beginning of the year was generally slow for property
sales was not
challenged.
I agree with the submission that the arbitrator properly had regard
to the evidence on non-compliance with the disciplinary code
as well
as whether the procedure that was followed was fair. The finding
therefore that the applicant should have given her the
opportunity
to prove herself in the new division and the failure to comply with
the disciplinary code cannot be faulted as one
that could not have
been made by a reasonable decision-maker could have made.
Mr Goldberg submitted that the arbitrator’s conclusion on the
second ground of review follows from the summary of evidence
in
respect of the short period of just over two months when the
respondent had moved to the new division. Her move to the new
division had in fact been recommended by the applicant’s own
doctor. She did not however receive any training in relation
to the
new division prior to the move. This prompted the finding that she
was not afforded “enough time (after her transfer
to the
property advertising section” to prove herself. The applicant
admitted that her move was an attempt to address the
performance
issues, but despite this no effort was made to train her or to
counsel her for the period 26 May 2004 to April 2005,
a period of
almost one year. Furthermore, the evidence of the respondent that
the targets in the new division were unattainable
at the time and
she received no support in this regard. She was required in a matter
of eight days to sell advertising space
worth R11 031.00 per
day and this created enormous pressure since the early months of the
year are slow months. This was
not challenged at the arbitration.
Mrs Lambert’s evidence was that in relation to employees who
are not performing that
“(i)f they don’t achieve targets
we still give them the opportunity to meet the targets and whatever
help (they)
needed. There was nothing more we could do”. This
evidence confirms that the applicant was obliged to afford the
respondent
a proper opportunity to improve and it failed to do so.
In the circumstances the arbitrator’s conclusion cannot be
said
to have been one that a reasonable decision maker could not
make.
Mr Goldberg urged this Court to find that even if the arbitrator
committed misconduct, the conclusion that the fourth respondent’s
dismissal was procedurally and substantively fair was ultimately one
that could on the evidence have been made by a reasonable
decision
maker. The applicant had conceded that all sales consultants are
subject to targets set by it. The applicant had not
proven that the
dismissal was a last resort nor did it convene an incapacity hearing
– instead it held a disciplinary enquiry
into misconduct
despite the fact that she had achieved 93% of her target and
evidence was led of her illness in mitigation. The
applicant did not
afford her a reasonable period of time for improvement although it
makes the concession in the heads of argument
that this is a
requirement prior to dismissing an employee for poor work
performance. It further concedes that on the authorities
a final
consideration by the employer is whether it is possible to remedy
the employee’s non-performance in any way short
of dismissal
by way of adapting the job or finding an alternative position for
the employee concerned. However, despite these
submissions in the
applicant’s heads, it led no evidence to the effect that the
performance of the fourth respondent was
assessed consistently over
a period of at least two years, that it was found to be too poor
despite her being given training,
an opportunity to improve,
invitation to approach management with suggestions, and a transfer
to a different division. Nor was
there evidence that she was, as the
applicant asserts, given ample time to meet her performance standard
in the new division.
In this regard the applicant asserts that no
employer should be required to allow an employee more than three
months to adjust
to a new division, particularly where her duties
were precisely the same in both divisions. However there was no
evidence that
she was given more than three months to adjust. There
was quite simply, the applicant states, “no other relevant
training
which could assist her to do the job that other persons in
her position were managing to do”. It was not disputed that
compared to the fourth respondent Willett did not meet the standards
at all, moreover failed to reach his targets on 22 occasions
out of
24, but no disciplinary action was taken against him. In any event
the applicant’s case at the arbitration was based
entirely on
a comparison between the respondent and the top performing employee
in the property division, Mr Rahman, who had
been transferred there
months prior to her, and the comparison with Willet for the purposes
of showing inconsistency was not
as vigorously challenged by the
applicant as it now does on review. In any event, as Mr Goldberg
submitted, the challenge on
this ground by the applicant is more
akin to an appeal than a review. The applicant’s concern is in
essence that the arbitrator
erred in reaching the conclusion
regarding parity on the facts.
Mr Goldberg also takes issue with the ground of review that her
failure to perform was influenced in part by illness caused by
the
pressure to perform is entirely unsupported by any evidence
whatsoever and accordingly unreasonable. He submitted that the
discipline meted out to her should be considered anew from the time
of her arrival in the new division in February 2005. She
achieves
93% of her target that month, and the following month she works six
days only prior to being prematurely dismissed.
There is no evidence
that she was told that she faced possible dismissal. On the contrary
she thought the issue of her previous
performance issues had been
resolved by her starting afresh as a new employee in a new
department. She in any event never received
training in property
which is different from classifieds, although the applicant
submitted that the job is generic. The applicant
did not dispute the
evidence moreover that the fourth respondent had been one of the top
performers in the motoring classified
section from 1995 to 1999 and
had moved to general classifieds for a new challenge.
I agree with the submissions made by Mr Goldberg that certain
grounds of review can more appropriately be said to be grounds
of
appeal. Moreover the applicant appears to rely primarily on
unreasonableness in the sense that the arbitrator failed to apply
her mind to the evidence before her. In any event the test is not
unreasonableness
per se
, but it is as follows: “
[110]
To summarize, Carephone held that s 145 of the LRA was suffused by
the then constitutional standard that the outcome of
an
administrative decision should be justifiable in relation to the
reasons given for it. The better approach is that s 145 is
now
suffused by the constitutional standard of reasonableness. That
standard is the one explained in Bato Star: Is the decision
reached
by the commissioner one that a reasonable decision maker could not
reach? Applying it will give effect not only to the
constitutional
right to fair labour practices, but also to the right to
administrative action which is lawful, reasonable and
procedurally
fair.
2
”
However even if this Court should find that the arbitrator committed
a reviewable defect, it would not as a matter of
course follow that
the award should be reviewed and set aside. This result will not
ensue where, in the context of reasonableness
review, the applicant
is unable to establish that the result of the award falls outside a
range of reasonableness. In
Sidumo
the Constitutional Court
held that an arbitration award will be unreasonable and thus
reviewable if it is a decision ‘that
a reasonable
decision-maker could not reach’. In applying this test Navsa J
emphasised that it was necessary to weigh all
the relevant factors
together, and that in a reasonableness review, the applicant must
establish that the
result
of the award falls outside the
range of reasonableness. In this regard, the Court held as follows:
‘
[t]o my mind, having
regard to the reasoning of the commissioner, based on the material
before him, it cannot be said that
his
conclusion
was one
that a reasonable decision-maker could not reach. This is one of
those cases where the decision-makers acting reasonably
may reach
different conclusions. The LRA has given that decision-making power
to a commissioner.
’
3
The applicant has not succeeded in persuading me that the outcome,
or indeed any of the findings made by the arbitrator, fall
to be set
aside on this test. Indeed on its own submissions, applying the
facts to the standards applicable to dismissal for
poor work
performance as set out in its heads of argument, the review cannot
succeed. The arbitrator delineates the law applicable
and in the
light of the facts her conclusion that the dismissal was
substantively and procedurally unfair cannot be faulted.
The award
balances the different considerations and in fact penalises the
fourth respondent for her lack of diligent performance.
In the
circumstances the review must fail and there is no reason why costs
should not follow the result.
Order
Therefore, I make the following order :
The application is dismissed with costs.
.
_______________________
BHOOLA J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT: J. Botes
Instructed by Cliffe Dekker Hofmeyer Inc
FOURTH RESPONDENT: A. Goldberg, Goldberg Jansens Attorneys
1
(2003)
24
ILJ
517 (LAC).
2
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
(2007) 28
ILJ
2405
(CC) at para [110]
3
Above
at para 119.