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[2017] ZALCJHB 344
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Bokwa Attorneys v Commission for Conciliation, Mediation and Arbitration and Others (JR512/15) [2017] ZALCJHB 344 (19 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: JR 512/15
In the matter between:
BOKWA ATTORNEYS
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
LETSIE JEREMIA MOLEKI
N.O
Second Respondent
CHANTELLE ANTIONETTE CHANDLER
STRAUSS
Third Respondent
Heard: 2 May 2017
Delivered: 19 September 2017
JUDGMENT: REASONS FOR ORDER
MAHOSI
AJ
Introduction
[1]
This is an unopposed application in terms of section 145 of the
Labour Relations Act
[1]
(LRA) to review and set aside the arbitration award of the second
respondent (“the arbitrator”) dated 12 February 2015
issued under the auspices of the first respondent (“CCMA”),
under the case number FSBF 5402-12.
[2] This matter was initially set down
on the unopposed roll for the 24
th
of May 2016 on which
date it was postponed
sine die
to enable the Applicant to file
supplementary affidavit addressing grounds on which to have the
arbitrator’s award reviewed
and set aside. Having had regard to
the substance of the matter, I issued an order in the following
terms:
‘
(a)
The review application is dismissed.
(b)
There is no order as to cost.’
[3] The applicant has since requested
reasons for my order. What follows hereunder is a brief background to
the application and
the reasoning for the order.
Background
[4] The third respondent was employed
as a conveyancing secretary by the applicant from the 13
th
of October 2014 and she earned R9800.00 per month. Her contract of
employment was subject to a four-month probation. On the 19
th
November 2014, the third respondent was dismissed for poor work
performance. As a result, she referred an unfair dismissal dispute
to
the CCMA on the 27
th
of November 2014. The dispute was set
down for con/arb that was scheduled for the 6
th
of January
2015. The dispute could not be resolved through conciliation and a
certificate of non-resolution was issued. As a result,
the matter
proceeded to arbitration.
[5] The arbitration was partly heard
on the same day and finalised on the 9
th
of February 2015.
At the end of the arbitration hearing, the arbitrator found the third
respondent’s dismissal to be procedurally
and substantively
unfair. Dissatisfied with the arbitrator’s award, the applicant
launched this review application.
Arbitration and the award
[6]
In his award, the arbitrator identified the issue in dispute to be
whether the third respondent’s dismissal was unfair.
The
applicant led evidence through one witness, Mrs. Jacoba Dalina
Hendrika Griebenov (“Ms. Griebenov”) and the third
respondent testified for herself. Ms. Griebenov testified that she
was employed by the applicant for about 12 years as a receptionist
and conveyancing secretary. According to her, a conveyancing process
normally takes up to six weeks to be completed but she further
stated
that it might take less than six weeks if it was a cash transaction.
Ms. Griebenov stated that she had not done conveyancing
work with the
third respondent and further that she could not remember any
conveyancing transaction that was registered at the
deeds office that
was initiated by the third respondent except the one in which the
purchase price was mistakenly paid into the
applicant’s trust
account but later transferred into the transferring attorney’s
account.
[2]
[7] During her testimony, Ms.
Griebenov was taken through a number of transfer documents that were
prepared by the third respondent
from which she identified different
kinds of defects. Ms. Griebenov was of the opinion that the third
respondent appeared to be
confident in herself and what she was
doing, as she did not ask for any help from her or any of the other
secretaries in the office.
Under cross-examination, Ms. Griebenov
testified that when the third respondent was working for the
applicant, there was no conveyancing
attorney employed by the
applicant. On the third respondent’s duties, Ms. Griebenov
confirmed that the third respondent’s
letter of appointment
only stated the period of probation and that she will be generating
deeds for conveyancing independently.
Ms. Griebenov further confirmed
that the said letter of appointment did not outline the third
respondent’s performance targets,
the person responsible for
her performance evaluation and how her performance will be evaluated.
[8] The third respondent testified
that there were a lot of conveyancing transactions she was processing
when she was dismissed.
She further testified that in her interview,
she was not given clear performance targets, as there was no head of
conveyancing
department. According to the third respondent, she did
her work to the best of her ability. At no stage was she made aware
that
she was performing below standard and she was never called to
give representation as to why she should not be dismissed. The third
respondent further testified that she was not provided with the
applicant’s code of conduct or a disciplinary code and she
was
further not subjected to any disciplinary hearing. All she received
from the applicant was a letter of dismissal on the 21
st
of November 2014, which was dated the 19
th
of November
2014. On the defects that were on the transferring documents she was
working on, the third respondent conceded that
there were documents
that were not signed and explained that it was due to human error and
further that she was still working on
others. The third respondent
denied ever being called in by Mr. Bokwa for the purpose of
evaluating her work performance.
[9]
In his analysis, the arbitrator started by outlining the provisions
of section 188(2) and Schedule 8 of the Code of Good Practice:
Dismissal of the LRA which deals with some of the key aspects of
dismissal for reasons related to misconduct and capacity. Item
8 of
Schedule 8 provides for the process to be followed prior to the
dismissal of the employees who are serving a period of probation.
[3]
The Code requires that the procedure leading to dismissal should
include an investigation to establish the reasons for the
unsatisfactory
performance and that the employer should consider
other ways short of dismissal to remedy the matter. In addition, the
employee
should have the right to be heard and to be assisted by a
trade union representative or a fellow employee.
[10] On the employer’s
requirement to advise the employee of the aspect in which the
employer considers the employee to be
failing to meet the required
standard, the arbitrator considered the third respondent’s
testimony that she had no knowledge
her alleged underperformance. The
arbitrator further considered Ms. Griebenov’s testimony that
she was not aware of any formal
meeting or evaluation process that
took place between the applicant and the third respondent. In
addition, the arbitrator did not
believe that the applicant was
justified to regard the third respondent as a poor performer on the
basis that the third respondent
already had transfer deeds that were
already being registered, one of which was recognised and confirmed
by the applicant’s
witness.
[11] The arbitrator was of the view
that the applicant failed to prove that it acted in compliance with
the Code of Good Practice:
Dismissal in effecting the third
respondent’s dismissal and further that it failed to prove that
there was a fair reason
to dismiss her. As a result, the arbitrator
found the third respondent’s dismissal to be both procedurally
and substantively
unfair and ordered the applicant to pay the third
respondent six months compensation.
Grounds of review
[12]
The applicant’s grounds in this review application are
tantamount to grounds of appeal. Instead of indicating in what
respect the commissioner’s award failed the reasonableness
test, as enunciated in
Sidumo
and Another v Rustenburg Platinum Mines and Others,
[4]
the applicant
embarks on a recital of evidence that was led at the arbitration. In
any event, the applicant’s grounds of review
are as follows:
‘
9.1
The Second Respondent’s decision is unreasonable in dialectical
sense.
9.2
The Second Respondent failed to apply his mind to all the relevant
facts and evidence placed before
him during the arbitration
proceedings.
9.3
The Second Respondent did not conduct a balanced and equitable
assessment of all the evidence
and failed to correctly apply the law,
resulting in a decision that no reasonable decision-maker could
reach.
9.3
The Second Respondent, in particular, failed to take into
consideration item 8(1)(j) of the Code
of Good Practice which
determines that less compelling reasons for dismissal is required in
respect of probationary employee.’
[13]
In its supplementary affidavit, the applicant did not supplement its
grounds of review as ordered on the 24
th
of May 2016. Instead, the applicant restated the evidence that was
led at the arbitration hearing, which according to it, was not
considered by the arbitrator. The applicant argued that even if the
dismissal is found to be procedurally and substantively unfair,
the
compensation granted is disproportionate to the dismissal.
Applicable Law and Analysis
[14] The arbitration awards are
reviewable in terms of section 145 of the LRA, which provides that
any party to a dispute who alleges
a defect in any arbitration
proceedings under the auspices of the Commission may apply to the
Labour Court for an order setting
aside the arbitration award.
Section 145(2) provides that:
‘
(2)
a defected referred to in (1), means-
(a)
that the commissioner-
(i)
committed misconduct in relation to the duties of the commissioner as
an arbitrator;
(ii)
committed gross irregularities in the conduct of the arbitration
proceedings; or
(iii)
exceeded the commissioner's powers; or
(b)
that an award has been improperly obtained.’
[15]
The applicant’s contention is that the arbitrator failed to
properly consider the evidence before him in arriving at
his
conclusion. The test for review which has been authoritatively stated
by the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[5]
was reiterated in
Herholdt
v Nedbank Ltd and Congress of South African Trade Unions
[6]
as follows:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls in one of the grounds in s 145(2)(a) of the LRA.
For a defect in the conduct of the proceedings to amount to
gross
irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must
have misconceived the nature of the enquiry or arrived
at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach on all
the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached to particular
fact, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their effect is
to render the outcome
unreasonable
.’
[7]
[16]
The principles to be applied by the arbitrator in considering the
fairness of dismissal for poor work performance were summarised
by
the Labour Appeal Court in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine v Commission
for Conciliation, Mediation and Arbitration and Others (Gold
Fields)
[8]
as follows:
‘
In
order to find that an employee is guilty of poor performance and
consider dismissal as an appropriate sanction for such conduct,
the
employer is required to prove that the employee did not meet existing
and known performance standards; that the failure to
meet the
expected standard of performance is serious; and that the employee
was given sufficient training, guidance, support, time
or counselling
to improve his or her performance but could not perform in terms of
the expected standards. Furthermore, the employer
should be able to
demonstrate that the failure to meet the standard of performance
required is due to the employee’s inability
to do so and not
due to factors that are outside the employee’s control.
’
[17] In this case, the applicant took
issue with the arbitrator’s finding that the applicant failed
to prove that it acted
in compliance with the Code of Good Practice:
Dismissal. It was the applicant’s submission that the
arbitrator failed to
take into consideration the fact that the third
respondent never sought any assistance and carried on without seeking
assistance;
that Ms Griebenov could not remember a single Deed that
was registered by the third respondent except one where money was
paid
into the applicant’s trust account but later transferred
to the transferring attorneys bank account; that the third respondent
admitted her error relating to one conveyancing transaction in which
the transfer document was signed and the others where the
Deeds of
Sale had no signatures; that the third respondent failed to enquire
about the applicant’s code of conduct; that
none of the
conveyancing matters went through due to her speaking to the
applicant’s clients who took away work after she
was dismissed;
that the third respondent denied ever being asked about the problems
in one of the conveyancing projects; that the
third respondent
specialised in conveyancing and further that she knew that she was
expected to work independently. It is my view
that the arbitrator
considered all the abovementioned evidence.
[18]
In his analysis, the arbitrator arrived at the finding that the
applicant was not made aware of her non-performance after taking
into
consideration the third respondent’s undisputed evidence that
she had no knowledge of her alleged under-performance,
as her
performance was not evaluated. In fact, it is apparent that the
applicant did not clearly set out the third respondent’s
performance standard except it’s expectation of her to perform
independently. If the applicant did, the third respondent
did not
know her performance targets and her performance was clearly not
assessed. It was further apparent that, if there was any
performance
standard or target, there was no evidence on the seriousness of the
third respondent’s failure to meet such performance
standard.
In view of the LAC’s judgment in
Gold
Fields,
[9]
it follows that the applicant failed to prove
(a) that the third respondent did not meet existing and known
performance standards; (b) that the failure to meet the expected
standard of performance is serious; (c) that the employee was given
sufficient training, guidance, support, time or counselling
to
improve his or her performance but could not perform in terms of the
expected standards. Furthermore, the applicant failed to
demonstrate
that the third respondent’s failure to meet the standard of
performance required is due to her inability to do
so and not due to
factors that are outside her control.
[19]
It was the applicant’s submission that the arbitrator failed to
take into consideration that less compelling reasons
for dismissal is
required in respect of a probationary employee. In
Palace
Engineering (Pty) Ltd v Thulani Ngcobo and Others,
[10]
the LAC stated as follows:
‘
The
acceptance of less compelling reasons for dismissal in respect of a
probationary employee as contemplated in item 8(1)(j) of
the Code
does not, in my view, detract from the trite principle that the
dismissal must be for a fair reason. Even though less
onerous reasons
can be accepted for dismissing a probationary employee, the fairness
of such reasons still needs to be tested against
the stipulations of
item 8(1)(a)-(h) of the Code of Good Practice. At the end of the day,
the onus rested on the employer to prove
that the dismissal was
substantively fair. The conspectus of the evidence proved the
opposite, that the dismissal was substantively
unfair.’
[11]
[20] The arbitrator seems to have
taken the view that, given the evidence by both parties that it may
take about six weeks to have
a Deeds of Transfer registered and
further that there were transactions that were handled by the third
respondent that were in
a process of being registered, it could not
be concluded that the third respondent was a poor performer. This is
particularly so
because the third respondent was dismissed after two
months of her employment. There was no evidence that the few mistakes
found
in the deeds of sale were serious enough to warrant the third
respondent’s dismissal. In other words, given the evidence
before him, the arbitrator did not find that there was a fair reason
to dismiss the third respondent. It can, therefore, not be
said that
the arbitrator failed to have regard to all the material facts in
this regard and to take into consideration Item 8(1)(j)
of Schedule
8.
[21] The applicant further took issue
with the arbitrator’s finding that the applicant must pay the
third respondent six months
compensation. In relation to the
applicant’s argument concerning relief, the LAC in the recent
case of
Kenco Engineering CC v NUMSA obo Members
stated as
follows:
‘
A
challenge to an order of the Labour Court awarding or refusing an
employee compensation in terms of s193(1)(c) of the Act is not
limited to the grounds applicable where an order is made pursuant to
the exercise of a true discretion or narrow discretion. It
is only in
regard to the determination of the amount of compensation that the
Labour Court or arbitrator exercises a true or narrow
discretion. It
is in regard to that decision that the powers of this Court is
circumscribed and can only be exercised on the limited
grounds. These
grounds include the following: That the Labour Court or arbitrator
(a) did not exercise a judicial discretion; or
(b) exercised its
discretion capriciously; or (c) exercised its discretion upon a wrong
principle; or (d) has not brought its unbiased
judgment to bear on
the question; or (e) has not acted for substantial reason; or (f) has
misdirected itself on the facts; or (g)
reached a decision in which
the result could not reasonably have been made by a court properly
directing itself to all the relevant
facts and principles. In the
absence of one of those grounds this court has no power to interfere
with the amount of compensation
determined by the Labour Court.’
[12]
[22] In this case, I am of the view
that the applicant failed to show that the arbitrator did not pass a
value judgment or that
the discretion he exercised was capricious or
founded on a wrong principle. As such, this Court has no power to
interfere with
the amount of compensation determined by the
arbitrator.
[23]
From the reading of the arbitration award, it is abundantly clear
that the arbitrator properly allowed the parties to state
their cases
and to lead evidence which evidence he considered and analysed before
coming to the conclusion that the applicant failed
to prove that the
third respondent’s dismissal was substantively and procedurally
fair. As such, it cannot be said that the
arbitrator failed to apply
his mind to the relevant facts and evidence placed before him during
the arbitration proceedings. It
is my view that the
applicant
failed to show that
the arbitrator, in exercising his discretion to award the third
respondent six months compensation, reached
a decision that a
reasonable decision-maker could not reach.
[24]
Therefore, there is
no basis for this Court to interfere with the arbitrator’s
decision. It was in light of these considerations
that I ordered that
the application to review the award issued by the second respondent
under case number FSBF 5402-12 dated 12
February 2015 is dismissed.
With regard to
costs, I was of the opinion that the requirements of law and fairness
dictate that there should be no order as to
costs.
__________________
D. Mahosi
Acting Judge of the Labour Court
APPEARANCES:
FOR
THE APPLICANT:
Adv. WJ van Wyk, Instructed by Bokwa Attorneys
[1]
Act
66 of 1995.
[2]
Record
page 26, at para 25.
[3]
8.
Probation—(
1) (a) An
employer may require a newly-hired employee to serve a period of
probation before the appointment of
the employee is confirmed.
(b) The
purpose of probation is to give the employer an opportunity to
evaluate the employee’s performance before
confirming the
appointment.
(c) Probation
should not be used for purposes not contemplated by this Code to
deprive employees of the status of permanent
employment. For
example, a practice of dismissing employees who complete their
probation periods and replacing them with newly-hired
employees, is
not consistent with the purpose of probation and constitutes an
unfair labour practice.
(d) The
period of probation should be determined in advance and be of
reasonable duration. The length of the probationary
period should be
determined with reference to the nature of the job and the time it
takes to determine the employee’s suitability
for continued
employment.
(e) During
the probationary period, the employee’s performance should be
assessed. An employer should give an
employee reasonable evaluation,
instruction, training, guidance or counselling in order to allow the
employee to render a satisfactory
service.
(f) If
the employer determines that the employee’s performance is
below standard, the employer should advise the employee
of any
aspects in which the employer considers the employee to be failing
to meet the required performance standards. If the
employer believes
that the employee is incompetent, the employer should advise the
employee of the respects in which the employee
is not competent. The
employer may either extend the probationary period or dismiss the
employee after complying with sub-items
(g) or (h), as the case may
be.
(g) The
period of probation may only be extended for a reason that relates
to the purpose of probation. The period
of extension should not be
disproportionate to the legitimate purpose that the employer seeks
to achieve.
(h) An
employer may only decide to dismiss an employee or extend the
probationary period after the employer has invited
the employee to
make representations and has considered any representations made. A
trade union representative or fellow employee
may make the
representations on behalf of the employee.
(i) If
the employer decides to dismiss the employee or to extend the
probationary period, the employer should advise
the employee of his
or her rights to refer the matter to a council having jurisdiction,
or to the Commission.
(j) Any
person making a decision about the fairness of a dismissal 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.
(2) After
probation, an employee should not be dismissed for unsatisfactory
performance unless the employer has—
(a)
given the employee appropriate evaluation, instruction, training,
guidance or counselling; and
(b)
after a reasonable period of time for improvement, the employee
continues to perform unsatisfactorily.
(3) The
procedure leading to dismissal should include an investigation to
establish the reasons for the unsatisfactory
performance and the
employer should consider other ways, short of dismissal, to remedy
the matter.
(4) In
the process, the employee should have the right to be heard and to
be assisted by a trade union representative
or a fellow employee.
[4]
2008
(2) 24 SA (CC).
[5]
2007
(28) ILJ 2405 (CC).
[6]
2013
(6) SA 224
(SCA);
2013 (11) BLLR 1074
(SCA); 2013(34) ILJ 2795(SCA)
at para 25.
[7]
At para 25.
[8]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 25.
[9]
Ibid
[10]
[2014]
6 BLLR 557 (LAC).
[11]
At
para 24.
[12]
Case
no JA/16 (
heard
on 16 March 2017 and delivered on 01 August 2017) at para 29.