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[2019] ZALCJHB 19
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Exxarro Ferro Alloys (Pty) Ltd v Kekana and Others (JR 1293/16) [2019] ZALCJHB 19 (5 February 2019)
In
the labour court of South Africa, JOHANNESBURG
Not
Reportable
case
no: JR 1293/16
In
the matter between:
EXXARRO
FERRO ALLOYS (Pty) LTD
Applicant
and
LESIBA
KEKANA
First Respondent
COMMISIONER
MALUBANE BUTI
Second Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Third
Respondent
Delivered:
5 February 2019
JUDGMENT
MAHOSI
J
Introduction
[1]
This is an application by the applicant in terms of section 145 of
the Labour Relations
Act (LRA)
[1]
in terms of which the applicant seeks an order to review and set
aside an arbitration award (award) issued by the second respondent
(the commissioner) under the auspices of the third respondent (CCMA)
under case number GATW13336-15 dated 08 June 2016. In his
award, the
commissioner found that the dismissal of first respondent (the
employee) was procedurally fair but substantively unfair.
The
commissioner ordered that the employee be retrospectively reinstated.
[2]
The issue is whether the decision reached by the commissioner is one
that a reasonable
decision-maker could not reach.
[3]
In his opposing affidavit, the employee took issue with the
applicant’s alleged
late filing of the supplementary affidavit.
Having had regard to the pleadings filed as well as the record, I am
of the view that
this matter deserves a full determination and I,
therefore, consider all the pleadings filed and the record of
the arbitration
proceedings.
Background
[4]
Prior to outlining the applicant’s case in detail and
considering the issues
that gave rise to the claim, it is necessary
to outline the facts that form the relevant background to the dispute
between the
parties.
[5]
The employee started working for the applicant on 1 August 2014 as a
Receiving Clerk.
The applicant employed the employee on the strength
of his Curriculum Vitae and his prior working experience having
worked as a
Receiving Clerk.
[6]
Shortly after employing the employee, the employer allegedly received
complaints from
its suppliers as well as that of its production staff
indicating that the employee was making several errors that impacted
on the
applicant’s operations. Upon receipt of these
complaints, the applicant investigated the matter and found that the
employee
was not meeting the required performance standard on a
number of tasks. The employer consequently commenced with a formal
poor
work performance process. A meeting with the employee was held
on 31 March 2015 wherein his performance shortfalls where articulated
and he was advised on what was required of him in order to achieve
the required standard. The applicant attests that the employee
agreed
to and signed an action plan on 01 April 2015 aimed at meeting the
required standard.
[7]
The applicant further attests that the employee was further given
formal on the job
training, on a full-time basis for two weeks, in
order to assist him to reach the required performance standard. The
employer further
submits that the employee was given additional
support measures, assessments, guidance, feedback, tests and
counselling sessions.
It is the applicant’s contention that the
employee continued to perform below standard despite these
interventions.
[8]
The applicant subsequently conducted a poor performance enquiry and
terminated the
employee’s employment on 07 October 2015 with
one month’s notice pay. Aggrieved by his dismissal, the
employee referred
an unfair dismissal dispute to the CCMA, according
to which he challenged both the substantive and procedural fairness
of his dismissal.
At the arbitration hearing, both parties submitted
bundles of documents in support of their respective cases.
The
arbitration proceedings and award
[9]
The arbitration hearing was set down for 8 June 2015 and both parties
were duly represented.
It was common cause that the employee was
dismissed. The issue before the commissioner was whether his
dismissal was procedurally
and substantively fair. The applicant
called its Human Resource business partner, Ms Refilwe Mongale, to
testify in support of
its case. The employee testified in support of
his case.
[10]
On 13 June 2016, the commissioner issued an award dated 6 June 2016
in terms of which he concluded
that the employee’s dismissal
was procedurally fair but substantively unfair. He summarised his
reasons as follows:
‘
[78]
In this case the evidence shows that there were
complaints about the work of the applicant, management investigated
and decided
to start a poor work performance with the applicant.
Looking at the fact that the applicant was observing Mrs Eleen Van
Der Westhuizen
as from 1 August 2014 and that he was taken off his
duties from 5 November 2014 till 30 January 2015. Sing he started on
1 August
2014 he was only given the work instructions on 31 March
2015. It cannot be fair to conclude that the applicant failed to meet
the performance standard or he was aware of the required performance
standard.
[79]
It is common cause that the poor work performance reviews or
counselling in this case were preceded
by the two weeks training
which took place on 7 to 21 April 2015. In this training the
applicant requested to be trained on GRV’s
and service entries.
This was mainly because while he was working at Grootegeluk Exxaro
Mine he was using a scanner SAP system
and at Exxaro Alloys he was
expected to use a computer SAP system. The evidence on page 31 of
bundle B shows that the applicant
was able to do the transactions
successfully without assistance.
[80]
It was decided that the applicant should have a further week of
counselling and support and his line
manager Mrs Helena Lourens was
expected to do a mini audit on Friday of 4 September 2015. It is the
applicant’s unopposed
evidence that on this week he compiled
his work on a file and the file was approved by his line manager Mrs
Helena Lourens, but
she used the questions he was asking her during
his daily feedback with her against him in her feedback. Surprising
enough Mrs
Helena Lourens was asked by Miss Refilwe Mongale if she
did a mini audit for that week as expected and Mrs Helena said no.
The
meeting found that the applicant did well in that week, but an
audit which was not part of the meeting confirmed that the applicant
wasn't competent.
[81]
Looking at the evidence above, it cannot be concluded that the
applicant failed to meet the required
performance standard or was
given a fair opportunity to meet the required performance standards.
[82]
Looking at the flaws of the poor work performance reviews or
counselling and taking into account the
mitigations and aggravating
circumstances of both parties it is my view that the respondent’s
decision to dismiss the applicant
is substantively unfair.’
[11]
It is this award that is the subject matter of this application. The
grounds on which the applicant
seeks to have the commissioner’s
award reviewed and set aside are considered below.
Grounds
of review
[12]
The applicant’s first ground was that the
commissioner’s decision to reject Miss Refiloe Mongale’s
evidence that the applicant started receiving complaints about the
employee’s errors shortly after her appointment is disconnected
from the evidence that was placed before him at the arbitration.
[13]
The Second ground was that no reasonable arbitrator would have
arrived at the conclusion that
the employee was not aware of the
required performance standard, did not fail to meet the required
performance standard and was
not given a fair opportunity to meet the
required performance standard.
[14]
The Third ground was that it was unreasonable for the arbitrator to
conclude that the employer
did not provide the employee with
sufficient training.
[15]
The Fourth ground was that the applicant’s witness was not
accorded the opportunity to
challenge the allegation that the
employee was taken off his duties from 5 November 2014 to 30 January
2015 during the arbitration
proceedings.
Applicable
law
[16]
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)(a) defines a defect as the commissioner’s
misconduct
in relation to the duties of the commissioner as an
arbitrator, gross irregularities in the conduct of the arbitration
proceedings,
exceeding the commissioner's powers or improperly
obtaining an award.
[17]
The applicant’s contention is, in essence, that the
commissioner committed material irregularity
in law and fact and that
he failed to apply his mind to the evidence thereby misconceiving the
nature of the inquiry. The legal
position applicable to reviews
brought in terms of section 145(2)(a) of the LRA was aptly summarised
in the case of
Herholdt
v Nedbank Ltd and Congress of South African Trade Unions
[2]
as follows:
‘
[25]
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.’
[3]
[18]
Item 9 of Schedule 8 outlines a guideline in cases of dismissal for
poor work performance and it provides
as follows:
‘
Any
person determining whether a dismissal for poor work performance is
unfair should consider –
(a)
whether or not
the employee failed to meet a performance standard; and
(b)
if the
employee did not meet a required performance standard whether or not
–
(i)
the employee
was aware, or could reasonably be expected to have been aware, of the
required performance standard;
(ii)
the employee
was given a fair opportunity to meet the required performance
standard; and
(iii)
dismissal was
an appropriate sanction for not meeting the required performance
standard.’
[19]
The principles to be applied by the commissioner 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
[4]
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 counseling
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.’
Evaluation
of arguments
[20]
The applicant took issue with the commissioner’s findings that
the employee was not aware of
the required performance standard, did
not fail to meet the required performance standard and that he was
not given a fair opportunity
to meet the required performance
standard. Item 9 of Schedule 8 requires the commissioner to firstly
consider whether the employee
failed to meet a performance standard.
In a case where he has not failed to meet the required performance
standard, that should
be the end of the enquiry. It is only after it
has been established that he failed to meet a performance standard
that the commissioner
is required to consider whether he was aware or
could have reasonably been expected to be aware of the required
performance standard,
whether he was given a fair opportunity to meet
the required performance standard and whether dismissal was an
appropriate sanction
for not meeting the required performance
standard.
[21]
In this case, the commissioner’s award stands to be reviewed
and set aside for three reasons.
Firstly, although the commissioner
referred to Item 9 of Schedule 8, he seemed not to have been aware of
what was required of him.
After finding that there was no poor work
performance, the commissioner proceeded to consider whether the
employee was afforded
a fair opportunity to meet the required
performance standard. In so doing, the commissioner failed to have
had regard to all the
material facts before him and to take into
consideration Item 9 of Schedule 8, which resulted in him
misconstruing the enquiry
before him. For this reason, his award
stands to be reviewed on this ground alone.
[22]
Secondly, the commissioner’s finding that
the employee was not aware of the required performance standard
is
clearly unreasonable. The commissioner based this finding on evidence
that the employee was given the work instruction on 31
March 2015. It
is not apparent for the award, why the commissioner ignored the
undisputed evidence that the employee asked for
two weeks training.
[23]
The applicant’s contention was that at no stage during the
formal poor work performance process
did the employee say anything to
the management to indicate that he disputed that he was
underperforming. In fact, the transcript
reveals that the
commissioner narrowed down the issues at the beginning of the
arbitration proceedings and stated that:
‘
Under
substantive fairness, this is a poor work performance dispute. Now
under substantive fairness the applicant is alleging that
he was not
aware of the performance standard and that he was not trained
properly or the training that he received was not adequate…’
[5]
[24]
The minutes of the counselling meetings dated 15 May 2015 reveals
that the employee acknowledged the
mistakes he made and appreciates
the need for corrective measures that were discussed with him. Had
the employee met the required
performance standard, there would have
been no reason for him to have requested further training. It follows
that the employee
was aware of his underperformance and appreciated
the need to improve his performance.
[25]
It is apparent that the commissioner ignored and/or failed to
consider this evidence. Had he done so,
he would have not have
arrived at the finding that the employee was not aware of the
required performance standard and that he
did not fail to meet the
said standard.
[26]
Thirdly, the commissioner’s finding that the employee was not
afforded a fair opportunity
to meet the required performance standard
was not supported by the evidence before him. In his award, the
commissioner arrived
on this finding on the basis that the employee
was given two weeks training which training, according to him, was
not enough. This
finding seems to suggest that the applicant took no
further steps and/or failed to provide the employee with further
assistance
in reaching the required performance standard.
[27]
However, the evidence before the commissioner was that in addition to
the two weeks training,
the applicant provided the employee with
additional ad-hoc training, guidance, assistance, tests, mini audits
to assess improvement
and regular feedback. These were provided over
a period of six months.
[28]
The employee clearly continued to underperform despite being provided
with on-the-job training,
supervision, guidance and feedback. Further
evidence before the commissioner was that the employee was consulted
in every step
of the process and was given an opportunity at every
meeting, review session and feedback session to comment on and
suggest more
training, which he did and which was provided to him.
This was in addition to the two weeks training and his purported
experience
from his previous job, as reflected in his CV.
[29]
It is apparent that the commissioner failed to consider the above
evidence. Had he taken into account
all the evidence before him, he
would not have arrived at the conclusion that the employee did not
fail to meet the required performance
standard, that he was not aware
of the required performance standard and that he was not afforded a
fair opportunity to meet the
required performance standard. Instead,
he would have arrived at the conclusion that the employee’s
dismissal was fair in
that he was underperforming, he was aware or at
least he ought to have been aware of the performance standard
required of him and
that the applicant provided him with enough
guidance, assistance and training in order to assist him in reaching
the required standard
of performance.
[30]
In light of the above, I am of the view that the employer succeeded
in making out a case that the commissioner’s
decision was
unreasonable and that he committed a gross irregularity in failing to
appreciate the material evidence before him
either properly or at
all.
Conclusion
[31]
As such, the outcome the commissioner arrived at cannot be
reasonable. His decision does not
fall within the range of possible
justifiable decisions that could be reached based on the facts before
a decision-maker. Therefore,
the commissioner committed a reviewable
irregularity and his award stands to be set aside. With regard to
costs, I am of the opinion
that the requirements of law and fairness
dictate that there should be no order as to costs.
Order
[32]
I, therefore, make the following order
a)
The arbitration award issued by the third
respondent (the commissioner) under the auspices of the second
respondent (SALGBC) under
case number GATW13336-15 dated 08 June 2016
is reviewed and set aside and substituted with the following order:
(i)
The dismissal of the employee, Mr Lesiba
Kekana, was substantively and procedurally fair.
(ii)
The employee’s referral of
arbitration to the third respondent is dismissed.
b)
There is no order as to costs.
______________________
D
Mahosi
Judge
of the Labour Court of South Africa
APPEARANCES:
FOR
THE APPLICANT
Mr.
M. G. Maeso of Shepstone & Wylie Attorneys
FOR
THE RESPONDENT
Mr. M. J. Maringa of Maringa Attorneys
[1]
Act 66 of 1995, as amended
.
[2]
2013 (6) SA 224
(SCA);
2013 (11) BLLR 1074
(SCA); 2013 (34) ILJ 2795
(SCA).
[3]
At para 25.
[4]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 25.
[5]
Transcribed
record, Vol 1 page 1 para 13 to 16.