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[2013] ZALCJHB 25
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Fempower a division of the Workforce Group (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 837/2010) [2013] ZALCJHB 25 (2 March 2013)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case No JR 837/2010
In the matter between:
FEMPOWER A DIVISION OF
THE
WORKFORCE GROUP (PTY)
LTD
...........................................................................
Applicant
and
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
...............................................................
First
Respondent
COMMISSIONER JN
MATSHEKGA NO
................................................
Second
Respondent
DANIELLE THERON
...................................................................................
Third
Respondent
Heard: 9 January 2013
Delivered: 2 March
2013
Summary: Employee
dismissed for poor work performance. Commissioner disregarded
evidence which was not contested by the employee.
He found that
dismissal was not appropriate sanction and procedures had not been
followed by the employer. His award is one which
a reasonable
decision maker would not have made. Award set aside.
JUDGMENT
SEEDAT, AJ
Background
[1] The third respondent
(the employee) was employed by the applicant on 25 February 2008 in
the position of a recruitment consultant.
[2] The applicant
operates in the recruitment industry, predominantly serving major
corporates. A recruitment consultant must have
the ability to
identify, usually through telesales, a potential client with
recruitment needs. If a client has a vacancy, the recruitment
consultant will initiate the recruitment process by looking for
potential candidates and then drive a selection program through
interviews and the compilation of curricula vitae.
[3] There was a practice
at the applicant’s workplace of daily morning meetings where
demands, targets and instructions were
discussed. At the time that
the employee was appointed, the applicant was very active in the
mining sector. The employee seemed
to cope with this group of people
but struggled with candidates from other disciplines.
[4] The crisis in the
world markets had a significant impact on the mining industry which
necessitated a shift to the recruitment
and placement of other
classes of candidates. It became apparent that the employee could not
perform beyond the task of the placement
of miners. It was not
disputed that the employee ‘could not adjust her personality to
deal with the various candidates and
used the same communication
strategy with all candidates that she used with miners’.
Notwithstanding attempts to train and
assist her, the employee did
not master the skill.
[5] In addition, the
employee did not like calling on clients, did not develop a client
base and her rate of curricula vitae referrals
was below the branch
average.
[6] On the 25 February
2009, Ms Nieman, the branch manager handed the employee a letter
stating that they should meet the next day
‘to discuss your
overall work performance’.
[7] On 20 March 2009, Ms
Nieman was instructed by her head office to terminate the applicant’s
services broadly because of
her ‘work performance in it (sic)
entirety as well as the lack of improvement thereof’. Ms Nieman
asked head office
if she could reword the letter ‘as she felt
she could not destroy all the work that she did building the
[employee’s]
confidence, guiding and assisting her in one day’.
The changed letter now read:
‘
This letter
serves to confirm our meeting earlier today as well as our previous
meeting on the 26
th
February 2009 regarding your individual performance being recorded at
a deficit for Fempower.
Given the current recession and the
global economic crisis, the Workforce has instructed divisions to cut
costs.
With this we have no alternative but
to terminate your employment giving you one month’s notice,
your last day will be 30
th
April 2009.’
[8] The employee received
this letter on Monday 23 March 2009 after a meeting with Ms Nieman.
The employee then referred a dispute
to the first respondent and an
award written by the second respondent (the commissioner) was issued
by the first respondent on
18 February 2010.
[9] These are facts that
were all admitted by the employee in her answering affidavit.
Grounds of review
[10] The applicant relied
on two grounds of review of the commissioner’s award:
10.1 The commissioner did
not comply with the requirement of an ‘impartial adjudicator’.
10.2 The decision which
the commissioner had made was not one which a reasonable decision
could have made.
The nature of the
dismissal
[11] In her answering
affidavit, the employee kept asserting that her dismissal was a
‘retrenchment’ and not one for
poor work performance. In
the form 7.11 referring her dispute to the first respondent, the
employee had crossed the block marked
‘unknown’ and not
the adjacent block stating ‘Operational Requirement
(Retrenchment)’. There is no specific
space for ‘Poor
Work Performance’ on the form. In the pre-arbitration minutes,
the employee, represented by an attorney,
had agreed that the ‘reason
for the dismissal is alleged poor work performance’. The
commissioner had made a finding
on the fairness of a dismissal for
poor work performance. Thus, the attempt by the employee to now
categorise her dismissal as
one for operational requirements is
nothing short of mischievous.
Evaluation of the
evidence in respect of the reason for the dismissal
[12] Assessing the
evidence against item 9 of the Code of Good Practice: Dismissal in
Schedule 8 to the Labour Relations Act 66
of 1995 (Schedule 8), the
commissioner found that the employee was aware of the required
performance standard and despite being
given an opportunity to meet
those standards, she had failed to do so. However, he concluded that
dismissal was not the appropriate
sanction because:
By changing the letter
of 23 March 2009 there was a ‘subliminal concession’ by
Ms Nieman that the employee ‘could
still improve her
performance with further interventions’.
The evidence was that
the employee did not perform more poorly than Dylan and Judy, her
two colleagues, and the performance
of the employee was not
properly assessed.
The employee’s
poor performance can be attributable to the economic recession.
The sales figures for
March 2009 for the employee show an improvement on those for
February 2009 in comparison to Dylan and
Judy, yet they were not
dismissed.
The activity sheet for
16-20 March 2009 shows that she met the minimum total points she
required.
[13] The findings of the
commissioner are insidiously contradictory. Having concluded that the
employee did not meet the required
performance standard despite being
given a fair opportunity to meet that standard, he finds, in his
assessment of sanction that
her performance was not properly assessed
and that the employee ‘could still improve her performance with
further interventions’.
The employee in her answering affidavit
admitted that she had not mastered the skill to deal with all the
disciplines and that
she did receive training and assistance. She
further conceded that the sales figures may not reflect the
‘falloffs’.
A falloff is when a candidate is placed with
a client but does not ‘turn up for the job’ or leaves the
job within the
first three months. The sales figures therefore could
not be accurate.
[14] He then raises the
effect of the recession on the employee’s ability to do her
work but forgets that earlier he had dismissed
this argument saying
that the employee had met her target only once prior to the effects
of recession even being felt. The employee
did not deny in her
answering affidavit that Dylan contributed more to the applicant’s
active and proactive sales and that
he was a better performer than
the employee.
[15] Mr Venter for the
employee argued that the commissioner’s award fell ‘within
a band of reasonableness’ as
espoused by Van Niekerk J in
Southern
Sun Hotel Interests (Pty) Ltd v CCMA and Others
.
1
It may be useful to
contextualise this principle stated at para 17 of the judgment:
‘
In summary,
s 145 requires that the outcome of CCMA arbitration proceedings (as
represented by the commissioner’s decision)
must fall within a
band of reasonableness, but does not preclude this court from
scrutinizing the process in terms of which the
decision was made. If
a commissioner fails to take material evidence into account, or has
regard to evidence that is irrelevant,
or the commissioner commits
some other misconduct or gross irregularity during the proceedings
under review and a party is likely
to be prejudiced as a consequence,
the commissioner’s decision is liable to be set aside
regardless of the result of the
proceedings or whether on the basis
of the record of the proceedings, the result is nonetheless capable
of justification.’
The Labour Appeal Court
in
Herholdt
v Nedbank Ltd
2
approved of this approach
of Van Niekerk J and concluded.
‘
One of the
duties of the commissioners is to determine the material facts and
then to apply the provisions of the LRA to those facts
in answering
the question whether the dismissal was for a fair reason.
Commissioners who do not do so do not fairly adjudicate
the issues
and the resulting decision and award will be unreasonable. Whether or
not an arbitration award decision or finding of
a commissioner is
reasonable must be determined objectively with due regard to all the
evidence that was before him or her and
what the issues were.’
The Constitutional Court
in
CUSA
v Tao Ying Metal Industries and Others
3
reminded us.
‘
It is by now
axiomatic that a commissioner is required to apply his or her mind to
the issues properly before him or her. Failure
to do so may result in
the ensuing award being reviewed and set aside.’
[16] In dealing with the
imposition of sanction the court in
Vodacom
(Pty) Ltd v Byrne NO and Others
4
said.
‘
In relation
to sanction, a commissioner may not substitute what he or she
considers to be an appropriate sanction for that imposed
by the
employer. The commissioner must consider a catalogue of factors,
intended to achieve a balance between employer and employee
interests, and to which a commissioner must give impartial
consideration.’
[17] It was never
suggested by the employee that alternatives, short of a dismissal,
should have been considered by the applicant.
Attempts were made to
remedy her shortcomings over a protracted period and it was therefore
not unreasonable for the applicant
to terminate her services.
[18] By totally
disregarding the evidence which had been admitted by the employee,
the commissioner crafted an award that was inherently
contradictory
and therefore vulnerable to a review.
Evaluation of the
evidence in respect of the fairness of the procedure
[19] The commissioner
found that the applicant had fallen short in the following respects:
The applicant did not adduce any
evidence of ‘evaluating, instructions, trainings (sic),
guidance or counselling that
was specifically given or issued to
the [employee] particularly between the period November 2008 and
March 2009 when the [employee’s]
performance became
concerning (sic)’.The employee was not given any warnings.
The employee was not given a hearing
before her dismissal.
[20] The employee in her
evidence admitted to a question posed to her by the commissioner that
she knew she was not performing and
went to Ms Nieman on a daily
basis for her to try to help her meet the targets.
[21] There is no absolute
requirement in law that the training and guidance of poor performing
employees should be formally structured.
This is obvious from the
provisions of item 8 of Schedule 8 which only calls for an
investigation before effecting a dismissal
for poor work performance
as compared to item 4 of Schedule 8 which sets out more detailed
guidelines for dismissals in misconduct
cases. The employee conceded
that she was not meeting the required standard and continually sought
help. The letter of 25 February
2009 informed the employee that there
was a problem with her performance and it matters not whether a
formal meeting was held or
not. Ms Nieman did call the employee to a
meeting before issuing her with the letter of termination of
employment. On the commissioner’s
own findings, the employee
was given an opportunity to meet the required performance standard
which she failed to do. There was
therefore no need for an intense
counselling and evaluation session followed by a formal disciplinary
enquiry.
[22] The commissioner
misdirected himself by holding that the issuance of a warning and the
holding of a hearing are a necessary
prerequisite to terminating the
services of an employee for unsatisfactory performance.
[23] Broadly, items 8(2)
and 8(3) of Schedule 8 require the following:
23.1
The employer should
conduct an investigation to establish the reasons for the poor
performance;
23.2 The employer must
give appropriate evaluation, instruction, training, guidance and
counselling; and
23.3 The employer must
give the employee a reasonable time to improve.
[24] Van Niekerk AJ (as
he then was) in
Avril
Elizabeth Home for the Mentally Handicapped v CCMA
5
held.
‘
The balance
struck by the LRA thus recognizes not only that managers are not
experienced judicial officers, but also that workplace
efficiencies
should not be unduly impeded by onerous procedural requirements. It
also recognizes that to require onerous workplace
disciplinary
procedures is inconsistent with a right to expeditious arbitration on
merits.'
While this case dealt
with misconduct hearings, there is no reason why a similar approach
should not be adopted in respect of dismissals
for poor work
performance.
[25] The employee had
been counselled. Her characterisation of the morning meetings as
‘chit chat’ is not supported
by her own evidence. She did
not ask for any specialised training. Her attempt to attribute the
shortcomings in her performance
to the ‘global recession’
is abysmally weak. I have to agree that the employee was not able to
adjust to an environment
that was rapidly changing because of the
economic downturn. She resisted going out to find new clients while
Dylan at least tried
to do so. On the commissioner’s own
finding, the employee had been given a fair opportunity to meet the
required standard
and had failed to do so.
[26] The failure of the
commissioner to take cognisance of these anomalies in the employee’s
evidence reveals a flaw in his
assessment of the fairness of the
dismissal. The commissioner ought to have regard in evaluating a
dismissal for unsatisfactory
performance, to what was fair to both
the employer and the employee.
6
He did not comprehend
that he had to take cognisance of all the ‘totality of the
circumstances of the case before him’.
7
The employee clearly
struggled in meeting her targets and frivolously described the
morning meetings as ‘a nice chitchat with
a cup of coffee and a
cigarette’. She was aware that she ‘was not performing
well’.
[27] The conclusion
reached by the commissioner, in my view, is not reasonable and
accordingly does not meet the standard set out
in
Sidumo
and Others v Rustenburg Platinum Mines and Others
.
8
The award of the
commissioner stands to be reviewed on the grounds that the
commissioner ought to have found the dismissal of the
employee to
have been fair.
[28] The circumstances of
this case do not merit an order for costs.
[29] In the
circumstances, the following order is made:
The arbitration award of
the commissioner issued under case number NWKD2395-09 dated 18
February 2010 is reviewed and set aside.
The arbitration award is
substituted with an order that the dismissal of the employee by the
applicant was not unfair.
There is no order as to
costs.
__________________
SEEDAT AJ
Acting Judge of the
Labour Court
APPEARANCES
For the Applicant:
Advocate WJ Scholtz
Instructed by: Attorneys
Hunts Inc
For the Respondent:
Advocate F Venter
Instructed by: Parsons
Attorneys
1
(2010)
31 ILJ 452 (LC) at para 17.
2
(2012)
33 ILJ 1789 (LAC) at para 39.
3
(2008)
29 ILJ 2461 (CC) at para 76.
4
(2012)
33 ILJ 2705 (LC) at para 12.
5
(2006)
27 ILJ 1644 (LC) at 1652B.
6
Brolaz
Projects (Pty) Ltd v CCMA
and Others
(2008) 29 ILJ 2241
(LC) at para 30.
7
Chesteron
Industries (Pty) Ltd v CCMA and Others
(2009) 30 ILJ 888 (LC) at
para 15.
8
(2007)
28 ILJ 2405 (CC) at para 110.