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[2015] ZALCJHB 242
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Motshekga v Commission for Conciliation Mediation And Arbitration and Others (JR2245/12) [2015] ZALCJHB 242 (7 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: JR 2245/12
In
the matter between:
PONTSHO
BLESSING
MOTSHEKGA
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
EVA
NGOBEN
Second Respondent
NATIONAL
LOTTERIES BOARD
Third
Respondent
Heard:
12 March 2015
Delivered:
7 August 2015
Summary:
Review application. Commissioner refusing the employee the right to
legal representation. Right to legal representation
in dismissal for
misconduct and incapacity governed by Rule 25 of the CCMA Rules. The
Commissioner has discretion to permit or
refuse legal representation.
JUDGMENT
MOLAHLEHI,
J
Introduction
[1]
This is an
application to review and set aside the arbitration award made under
case number GATW 8122012 dated 6 August 2012 in
terms of which the
dismissal of the applicant was found by the second respondent to have
been for a fair reason.
[2]
The
application includes an application for condonation in case it was to
be found that the review application is late. In my view
the
application was not late and thus no need for the condonation
application. If for whatever technical reason it was, the delay
of
few days is so insignificant that it would not serve the interest of
justice not to condone the late filing of the review application.
The
late filing of the review application, if at all, is condoned.
Background
facts
[3]
The
applicant who was prior to his dismissal employed as field worker was
dismissed for incapacity- poor work performance by the
third
respondent. The third respondent is the National Lottery Board (“the
board”), a non-profit making organization
established in terms
of the Lotteries Act.
[1]
The key
function of the board is to consider and award grants to
organisations involved in charity work.
[4]
The
function of the applicant as field worker was to perform site visits
to both organizations that have applied for a grant and
those that
have already received it. The purpose of these visits is two-fold,
namely for those that have applied is to generate
reports to advice
the board on its consideration of the application for funding, and
for those that are receiving funding from
the board to generate
reports that would reflect whether or not the funds are utilized in
line with the purpose stated in the application
for the grant. The
other purpose of the visits is to check whether a grantee has proper
internal controls.
[5]
It is
common cause that during the cause of his employment the applicant
failed to meet the standard of performance required by
the third
respondent. He was for this reason placed on the training and
mentoring referred to as “incubation” programs.
[6]
The
applicant was dismissed by the third respondent following an
incapacity hearing where she was found to have failed
to
meet the required standard of performance. Although there seems to
have been some confusion as to under which provision of the
policy
the hearing was instituted, in substance it was however what the
complaint against the applicant was. He was therefore not
prejudiced
by that confusion. Following an unsuccessful internal appeal against
the dismissal, the applicant referred an unfair
dismissal dispute to
the CCMA. The arbitration proceedings which are the subject of these
proceedings were conducted subsequent
to failure of the conciliation.
The outcome of the arbitration proceedings as indicated earlier was
that the dismissal of the applicant
was for a fair reason and thus
the applicant’s claim of unfair dismissal was dismissed by the
second respondent.
Grounds
of review
[7]
The
applicant has in challenging the arbitration award raised several
grounds of review which includes failure to consider
the
relevant facts, misdirection in applying the facts and the law, gross
misconduct and the that the decision of the Commissioner
is not
just and reasonable.
[8]
The
applicant further contends that her dismissal was flawed in that the
third respondent in dismissing her applied an incorrect
provision of
its policy. The third respondent relied in this regard on
clause 32(8) of the National Lotteries Board
policy which according
to the applicant does not relate to incapacity.
[9]
The other
grounds upon which the applicant relies on in challenging the
arbitration award is that the Commissioner disregarded:
9.1
The fact
that the applicant’s responsibilities were more than those of
the other field workers and was overworked as compared
to other field
workers in the same position.
9.2
the
applicant’s submission that there were no performance standards
set for her.
9.3
the
applicant’s submission that she was not given training
timeously.
9.4
the
applicant’s submission that after the incubation, he was
expected to report to a senior official who in turn had challenges
of
his own.
9.5
the
applicant’s submission that at the time of being provided with
guidance, he had to travelled between Gauteng and Limpopo
and was
also doing assignments.
9.6
the
applicant’s submission that the dismissal was harsh and that
the third respondent failed to consider policy on managing
poor work
performance.
9.7
the
applicant’s submission that at no stage was the applicant given
a warning by the third respondent.
9.8
the
fact that the third respondent had an opportunity to demote the
applicant before considering dismissal as per the third respondent’s
policy.
[10]
The other
main point upon which the applicant relies on in challenging the
arbitration award is that the Commissioner refused her
legal
representation.
The
arbitration award
[11]
Before
dealing with the merits of the dispute the Commissioner had to
consider the preliminary point relating to legal representation
for
the applicant. The Commissioner in refusing legal representation for
the applicant reasoned that:
“
Although the company is a big
company, the representative failed to provide a justification when
relying on comparative ability
of the parties. This is not a complex
matter and there is not going to be a question of law raised during
the proceedings. The
dispute is about whether the employee met the
performance standard or not, and it is my view that the employee is
better placed
to respond to those questions without prejudice.”
[12]
In relation
to the merit of the dispute the Commissioner found that the applicant
conceded that she had failed to meet the standard
which had been set
for her. She further found that the employee had been provided with
training which had been extended from three
months to six months. The
applicant was according to the Commissioner placed on incubation
whose purpose was to assist the applicant
with his performance
problem.
[13]
The
Commissioner further found that although there was some improvement
in the performance of the applicant, he had still failed
to perform
at the standard required of him. In relation to the contention of the
applicant that the third respondent ought to have
demoted her rather
than the dismissal, the Commissioner found that in term of the policy
the third respondent had the discretion
whether to demote the
applicant in the context of poor performance.
Evaluation
[14]
The first
issue to consider in this application concerns the Commissioner’s
refusal to allow legal representation for the
applicant during the
arbitration hearing. The right to legal representation in the
CCMA is governed by rule 25(1) (b) of
the Labour Relations Act (the
LRA), which provides:
“
(b)
Subject to paragraph (c), in any arbitration
proceedings a party to the dispute may appear in person
or be
represented only by-
i) a legal practitioner, or
ii) an individual entitled to
represent the party at conciliation proceedings in terms of sub- rule
(1) (a)
(c)
If the dispute being arbitrated is about the fairness of a dismissal
and a party has alleged
that the reason for the dismissal relate to
the employee's conduct or capacity, a party is not entitled to be
represented by a
legal practitioner in the proceedings unless-
i)
the Commissioner and all the other party's consent;
ii)
the Commissioner concludes that it is unreasonable to expect a party
to deal with
the district without legal representation, after
considering-
a) the
nature of the question of law raised by the dispute;
b) the
complexity of the dispute;
c) the
public interest; and
d) the
comparative ability of the opposing parties or their representatives
to deal with the dispute."
[15]
It is trite
that the right to legal representation, in disputes involving
dismissal for misconduct or poor performance is regulated
by the
provisions of rule 25 (1) (c) of the CCMA Rules. The provisions of
this rule are in line with the common law principle which
does not
provide for an absolute right to legal representation in
administrative tribunals.
[2]
The
right to legal representation in arbitration hearings concerning
dismissal for misconduct or poor performance was prior to
the 2002
LRA amendment governed by s 140 of the LRA.
[16]
In
Netherburn
Engineering CC t/a Netherburn Ceremics v Mdau
,
[3]
the Labour Appeal Court, held that there was no general right to
legal representation before an administrative body such as the
CCMA.
[4]
It follows in the
context of this matter that the review ruling of the Commissioner
disallowing legal representation has to be
evaluated in the context
of the principles governing the exercise of discretion to allow or
refuse legal representation by the
Commissioner in terms of rule 25
(1) (c) of the CCMA Rules.
[5]
[17]
In the
recent decision of
Commission
for Conciliation, Mediation & Arbitration & others v Law
Society of the Northern Provinces
[6]
the
Constitutional overturned the decision of the Northern Gauteng High
Court, which declared the sub-rule dealing with legal representation
in the CCMA to be unconstitutional and invalid. The Constitutional
Court in setting aside that judgment held that the sub-rule
is
sufficiently flexible to allow for legal representation in deserving
cases.
[18]
In the
present matter the legal representative of the applicant conceded
during argument in these proceedings that the issue was
not about the
complexity of the matter but rather about equality of arms. At the
arbitration hearing the applicant’s representative
argued that
the applicant was entitled to legal representation because the third
respondent “is a very big organization,
equipped with the
necessary knowledge and knowledge to deal with labour disputes,”
such as the present one.
[19]
In refusing
to grant permission for legal representation the Commissioner found
that the applicant had failed to make out a case
for the exercise of
the discretion in favor of allowing legal representation. In essence,
he found that the matter was not complex
and that the applicant had
failed to show that there was inequality in the comparative ability
between him and the representative
of the third respondent to deal
with the matter.
[20]
It is
common cause that the third respondent was represented by its HR
manager during the arbitration hearing. It is apparent from
the
reading of the record that the Commissioner had full appreciation of
the issue she had to address in relation to the application
for legal
representation. She applied her mind to that issue and took into
account the relevant factors in exercising her discretion
not to
allow legal representation during the proceedings. She took into
account the fact that the mater did not entail any legal
issue but
was only concerned with the factual issue of the alleged poor
performance by the applicant. The Commissioner, cannot
in my view, be
criticized for failing to exercise her discretion in a fair
reasonable manner.
[21]
I now turn
to deal with the merits of the review application and in doing so I
apply the well established test of review set out
in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[7]
.
The test of review which has received attention in various judgments
of this Court requires the review Court to determine whether
the
conclusion reached by the CCMA Commissioner is one which a reasonable
decision maker could not reach. It is common cause that
the applicant
was dismissed for poor work performance. It has also not been
disputed that the applicant failed to perform his duties
to the
required standard. The issue that then arises is whether the
dismissal was, having regard to the totality of the facts and
the
circumstances of this case, fair.
[22]
The duty to
show that the dismissal for poor work performance was done in
accordance with the requirements of fairness rests with
the employer.
In addition to showing that the performance of the employee was below
the required standard the employer has to show
that the dismissal was
effected in line with the provisions of the Code of Good Practice:
Dismissal. In terms of the Code the employer
has to prove that:
22.1
The
employee should have been aware, or could reasonably have been
expected to be aware, of the required performance standard;
22.2
The
employee was given the reasonable opportunity to meet the required
standard;
22.3
Dismissal
was an appropriate sanction for not meeting the required standard.
[23]
In
my view, the contention of the applicant that no performance standard
was set for him bears no merit. The duties of the applicant
appear
very clearly from the record. His duties as indicated earlier in the
judgment were to visit various potential beneficiaries
and
beneficiaries of the grant made by the third respondent. It is quite
clear that the applicant was required to make reports
timeously for
the purposes of the third respondent considering the various
applications for grants. The reports made by the applicant
had to
assist the third respondent in determining whether to approve or
refuse an application for a grant.
[24]
It
has not been disputed that the two managers who were responsible for
the supervision of the applicant had raised concern about
the poor
performance of the applicant. It was also not disputed that several
informal meetings were convened with applicant where
his poor
performance was discussed. In this regard the applicant conceded
during the meetings with him that his performance was
unsatisfactory
and he undertook to improve the same.
[25]
In
seeking to address the problem of the applicant's performance, the
parties agreed on a training programme, including mentoring
at the
head office, referred to as incubation. The applicant was in this
respect provided with training on speed typing, business
writing and
report writing. In relation to the incubation program the applicant
conducted the site visit under the supervision
of Mr Makhathini, one
of the managers of the third respondent. The second part of the
incubation entailed report writing under
the supervision of the same
manager based at the head office.
[26]
Although
there was some improvement after attending the above programs, the
performance of the applicant remained below the standard.
He still
failed to meet the objectives of the site visits and his reports were
fraught with mistakes. It was following this outcome
that the second
meeting was held where it was pointed out to the applicant that his
performance was despite the training and the
incubation still below
the standard. It was also pointed out to him that his delay in
submitting reports on time affected adjudication
of the applications
for grants.
[27]
At
the third performance meeting the issue of poor performance was again
raised with the applicant. He was specifically informed
that he was
still using the old and not the updated program which had been sent
to him. The other issue raised with him related
to failure to ask the
right questions during his site visits, not preparing when
undertaking the site visits and not submitting
reports on time.
[28]
The
only explanation tendered by the applicant for his poor performance
was that he was overworked and that unlike other fieldworkers
at the
head office he did not have support.
[29]
The
other ground upon which the applicant relies on in challenging the
arbitration award is that the third respondent failed to
apply its
policy on managing poor work performance. In this respect he relied
on the provisions of policy which reads as follows:
“
4.
Managing
Poor Performance
All employees are expected to achieve
not less than 100% (Target) for the salary they are being paid for.
Management must be able to identify
and handle weaknesses in performance through the performance
management system.
If at any time during the rating
period an employee’s performance is deemed to be
Not
Reaching the Target
in one or more critical elements, the
employee will be given a documented performance improvement plan by
hi/her manger/supervisor
and an opportunity to reach the Target in
terms of the agreement/contract.
Employees must be under a performance
plant for at least 90 days (3 months) before performance can be
determined to be reaching
the TARGET or not.
The length of the documented
opportunity to improve may vary depending on the employee’s
position, type of work, etc.
The assessment meeting does not form
part of any disciplinary process.
In short, the employee must be
informed in writing that:-
His/her performance is not reaching
the TARGET
The element(s) on which that rating is
based and how the employee’s performance did not reach the
TARGET;
What the employee must do to reach the
TARGET level of performance;
The specific assistance that will be
provided to help the employee;”
[30]
The
above provisions of the policy in my view serve as guidelines on
managing poor work performance. It does not serve as a rigid
rule on
the approach to adopt when managing poor work performance. There is
no doubt that except for failure to issue the applicant
with the
document required by the policy, the third respondent in the approach
it adopted complied with all the basic principles
contained in the
policy. It follows therefore that upholding the point raised by the
applicant regarding non-compliance with the
policy would amount to
placing form above substance.
[31]
The
substance of the matter as required by the policy is that the
applicant was informed about his failure to perform in accordance
with his employment contract. He was also made aware as to what he
should do in order to comply with the standard required of him.
It is
common cause that the applicant was initially placed under a three
month training programme which was later extended for
a further three
months. The same applies to the issue of the notice of disciplinary
hearing as indicated although there was confusion
about the
provisions of the policy under which the hearing was instituted, the
applicant was fully aware of the charge he had to
answer to.
[32]
The
other issue raised by the applicant is that the dismissal is harsh
because the third respondent ought to have demoted him before
resorting to dismissal in terms of the policy. In this respect it is
important to emphasis that the policy serves as a guideline,
and thus
its provisions are not mandatory. The balance between demotion and
dismissal as a last resort depends on the facts and
the circumstances
of a given case. The facts and the circumstances of this particular
case indicates clearly that in electing to
dismiss the applicant
without first demoting him, the third respondent acted in a fair
manner.
[33]
In
light of the above discussion I find that the applicant has failed to
make out a case warranting interference with the arbitration
award of
the Commissioner. I do not however believe that costs should be
allowed to follow the result.
Order
[34]
In
the premises the applicant’s application to review the
arbitration award made under case number GATW 8122012 dated 06 August
2012, is dismissed with no order as to costs.
____________________
Molahlehi
J
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr T Phasha
of TF Matlakala Atttorneys
For
the Respondent:
Miss S Gabie of Cheadle Thompson & Haysom
Inc.
[1]
Act no 57 of 1997.
[2]
See
Hamata
and Another v Chairperson of the Disciplinary Penensula Technicon
Internal Disciplinary
Hearing 2002 (5) SA 44 (SCA.
[3]
(2009) 30 ILJ 269 (LAC).
[4]
The Constitutional Court dismissed
the appeal not on the merit but due to unreasonable delay and
failure by the appellant to appear
when the matter was heard by the
LAC. This means the approach to adopt is that set out by the LAC.
[5]
See
Norman
Tsie Taxi v Pooe N.O
(2004) ZALC 2
(2 January 2004).
[6]
(005/13)
[2013] ZASCA 118
(20
September 2013)
[7]
(2007) 28
ILJ
2405 (CC)