About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 156
|
|
Moneyline Financial Services (Pty) Ltd v Chakane NO and Others (JR2454/17) [2019] ZALCJHB 156 (19 June 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JR 2454 /17
In the matter between:
MONEYLINE
FINANCIAL SERVICES (PTY) LTD
Applicant
and
TSIENTSI
CHAKANE NO
First
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Second Respondent
NTHABISENG MOFOKENG AND 7
OTHERS
Third Respondent
Heard: 12
June 2019
Delivered: 19 June
2019
JUDGMENT
Nkutha-Nkontwana, J
Introduction
[1]
In this application, the applicant seeks to
review and set aside an arbitration award issued on 31 July 2017
under case number FSBF
961-17 where the first respondent
(commissioner) found the dismissal of the third respondents
(respondent employees) procedurally
fair but substantively unfair and
ordered the applicant to reinstate the respondent employees with full
back pay.
[2]
The
applicant’s main ground of review is that the commissioner
ignored the evidence before him when viewed in relation to
the
requirements for a dismissal based on poor work performance in terms
of the Labour Relations Act
[1]
(LRA): Code of Good Practice on Dismissals (the Code).
[3]
The respondent employees are opposing the
application. I must mention that the respondent employees’
attorneys of record failed
to attend Court on the day of the hearing
of this matter. Four of the respondent employees (Mr Tieho Joseph
Mofokeng (Mr Mofokeng),
Ms Jwalane Pascalina Keletsi, Mr Seiso
Augustinus Tshabalala and Ms Seipati Esther Koetepe) did attend
Court, having travelled
from Bethlehem in the Free State Province by
public transport. The rest of the respondent employees did not attend
Court because
they could not finance the travelling expenses.
However, there was a telephonic consultation between the respondent
employees who
attended Court and those who were absent. They all
resolved that the matter should be heard and Mr Mofokeng be their
spokesperson.
Factual background
[4]
The respondent employees were employed as
sales representatives. When they commenced employment with the
applicant, there were no
performance targets set. On 21 September
2016, the applicant issued a memorandum to all its employees setting
out the performance
targets as follows:
4.1
Employees dedicated to selling Easy Pay
Everywhere products should reach an average transaction rate of 200
transactions per month.
4.2
Employees dedicated to selling Smart Life
Products should reach an average transaction rate of 100 transactions
per month.
[5]
It is common course that the respondent
employees failed to achieve the performance targets between September
2016 and January 2017.
On 12 October 2016, the first letter warning
the respondent employees of poor work performance was issued in
respect of the month
of September 2016. On 9 November 2016, a second
letter then serving as a final ultimatum was issued in respect of the
respondent
employees’ poor work performance for the month of
October 2016. The respondent employees were afforded the opportunity
to
make written representations wherein they were to give reasons for
failing to meet the performance targets. The applicant found
their
explanation unacceptable. On 18 January 2017, the respondent
employees were served with the notices to attend performance
enquiries respectively.
[6]
During the respective performance
enquiries, the respondent employees repeated the reasons they had
given to the applicant in their
written representations which can be
summarised,
inter alia
,
as follows:
6.1
There was a bad publicity about the green
cards which was broadcast in Lesedi radio station. The applicant did
nothing to improve
its image.
6.2
There was a change of the system and they
had to use the machines. They never received any training on the new
system.
6.3
There was an issue of fingerprints which
could not be found on the SASSA system and the prospective clients
had to go to SASSA offices.
6.4
The clientele they were servicing was
predominantly the aged people and most of them did not have cellular
phones. As a result,
they needed to use an override code which wasted
time.
6.5
The respondent employees were arrested by
SAPS whilst working in Marquard, Frankfort and Lindley.
[7]
The same reasons were reiterated during the
arbitration proceedings. The respondent employees testified that
these challenges had
been brought to the attention of the managers.
[8]
Ms Sonnet MacGregor (Ms MacGregor), the
applicant’s Industrial Relations Manager, testified that the
performance targets were
reasonable and other employees were
achieving them. The applicant needed to introduce the performance
targets in order to improve
cash flow for survival.
[9]
Mr Marvin Edward Edwards (Mr Edwards), the
applicant’s Provincial Manager in the Free State Province
conceded that he was
aware of some of the problems experienced by the
respondent employees but some were never brought to his attention. He
was however
adamant that the targets were reasonable and achievable
and that the applicant would become bankrupt if all staff members
failed
to achieve the performance targets.
[10]
Mr Keiso Khalaki (Mr Khalaki), the acting
Branch Manager in Bethlehem where the respondent employees were
based, conceded that the
problem with cell phones was reported to him
but beneficiaries could use their next of kin’s cellular
phones. This was however
never communicated to the respondent
employees when they made written representations. He also confirmed
that in the case of system
error, a client had to go to SASSA for
verification of fingerprints.
[11]
He also conceded that Mr Thabo Kibe (Mr
Kibe) and Ms Refilwe Mokatile (Ms Mokatile) did not achieve the
performance target but were
never dismissed because their machines
were malfunctioning. However, he could not remember what were the
reasons for excusing other
two employees, Ms Thembi Mofokeng and Ms
Puleng Mofokeng, who also did not achieve the performance targets.
The commissioner’s
findings
[12]
The commissioner found that the applicant
acted inconsistently because it had accepted the reasons for
non-performance proffered
by the employees mentioned above without
any justifiable reasons. He also found that the dismissal was not an
appropriate sanction
as training could have been a reasonable
alternative. He accepted that the reasons proffered by the respondent
employees for non-performance
as genuine and plausible given the
context of the industry they operated in.
Evaluation
[13]
The
test for review is trite. As per
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[2]
the commissioner’s conclusion must fall within a range of
decisions that a reasonable decision maker could make.
[14]
The Code provides the following guidelines in cases of
dismissal for poor work performance:
‘
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.’
[15]
The
onus is on the employer to satisfy the commissioner, on a balance of
probabilities, that the dismissal for reasons of poor work
performance is fair. In
General
Motors (Pty) Ltd v NUMSA obo Ruiters,
[3]
the Labour Appeal Court (LAC) held that the employer has a duty to
investigate all possible alternatives short of dismissal, and
this
duty accords with the onus of proving the fairness of the dismissal.
[16]
The core issue in the matter at hand is
whether the respondent employees were given enough opportunity to
meet the performance target.
The performance targets were introduced
in September 2016 in the context where there were no targets before.
The respondent employees
failed to meet the newly introduced
performance targets at the end of September 2016, on 12 October 2016
they were issues with
letters of poor work performance in respect of
September 2016. The respondent employees submitted that it was hardly
a month after
the introduction of the targets and they were subjected
to a poor work performance management process. On 9 November 2016,
they
were issued with final ultimatums for poor work performance
despite failure on the part of the applicant to address their
concerns
as contained in their written submissions.
[17]
During the performance enquires held in
January 2017, there was no response to the respondent employees’
concerns. Ms Macgregor,
the initiator, was clearly not in a position
to deal with the respondent employees’ concerns as she was not
their line supervisor.
It was only during the arbitration that the
applicant led the evidence responding to the respondent employees’
concerns.
[18]
The respondent employees testified that
they never received training on the new system and marketing. Mr
Edward was adamant that
the respondent employees were provided with
the manual for the new system and were expected to read and
understand it. Whilst Mr
Khalaki testified that the respondent
employees had been trained but failed to provide specific dates for
such training. He also
testified that there was no need for marketing
training as the respondent employees were never asked to market the
products but
to sell them. Conversely, he testified that he had shown
Mr Mofokeng, one of the respondent employees, how to approach clients
and raise his daily statistics. This was disputed by Mr Mofokeng.
[19]
Nonetheless, it would seem that there is
some credence in the respondent employees’ assertion that they
never received training
or coaching that would have assisted them to
improve their performance targets. The commissioner correctly
accepted the reasons
proffered by the respondent employees as genuine
and plausible. Messrs Edward and Khalaki conceded that there had been
negative
media publicity on the green cards. It was the respondent
employees’ undisputed evidence that as a result of the negative
media reports, the prospective clients were suspicious and negative
towards them. In fact, it is common cause that at some stage
they
were even arrested. The applicant did not investigate these
allegations nor took any steps to defend its reputation within
the
affected communities. Also, Mr Khalaki was aware that most
prospective clients had no cellular phones but never addressed this
issue with the respondent employees.
[20]
It is clear that there were no counselling
sessions with the respondent employees in order to address their
concerns and offer necessary
support or training. The process of
written representations was arbitrary; the respondent employees were
never provided with the
reasons for rejecting their representations.
[21]
The applicant submitted, conversely, that
the respondent employees knew the performance targets and, in any
event, other employees
managed to achieve the targets. There is no
merit in this submission as the reasonableness of the performance
targets is not challenged.
In any event, the performance enquiry is
targeted at the non-performers with a view to, firstly, assist them
to improve their performance;
and secondly, to establish whether
dismissal is an appropriate sanction.
[22]
The
respondent employees were not senior employees who ought to have
known what was expected of them without being given support
and a
chance to improve. As such, the
dictum
in
New
Forest Farming v Cachalia and Others
[4]
referred to in the applicant’s written submissions is
distinguishable. However,
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others,
[5]
referred to in Mr Hutchinson’s (applicant’s counsel)
written address to Court, is more pertinent. The LAC stated:
‘
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
.’ (Emphasis added)
[23]
In the present case, the applicant failed
to show that the respondent employees were given sufficient training,
guidance, support,
counselling and reasonable time to improve their
performance. The respondent employees had genuine concerns that were
outside their
control and could have been managed with the assistance
from the applicant. Clearly, the commissioner correctly found that
the
applicant failed to explore alternative measures short of
dismissal, like training. It follows that the applicant failed to
show
that the dismissal of the respondent employees was an
appropriate sanction.
[24]
On the issue of relief, Mr Hutchinson submitted
that reinstatement was not an appropriate remedy given the fact that
the respondent
employees conceded that they failed to achieve the
performance targets that they readily accepted was reasonable. Even
though,
the respondent employees complained about training, other
employees faced with the same circumstances were achieving the
performance
targets and they had been sales representatives for more
than two years, so the submission went.
[25]
Mr Hutchinson also submitted that, to the extent
that the commissioner took into account the applicant’s
inconsistent application
of discipline in relation to Ms Thembi and
Ms Puleng, that relates to misconduct and finds no application in
cases of poor work
performance. Alternatively, such flaw does not
justify reinstatement given the seriousness of the failure to meet
the performance
targets on the viability of the applicant’s
operations. At least, the commissioner should have awarded
compensation.
[26]
In my view, nothing much turns on the
inconsistency issue in the light of my finding that the applicant
failed to show that the
dismissal of the respondent employees was an
appropriate sanction. Reinstatement is a primary remedy in instances
where dismissal
is found to be substantively unfair. In the absence
of any evidence that
the circumstances surrounding the
dismissal of the respondent employees are such that a continued
employment relationship would
be intolerable, alternatively, that it
is not reasonably practicable for the applicant to reinstate the
respondent employees, the
commissioner correctly reinstated the
respondent employees.
Conclusion
[27]
In all the circumstances, I find no reason
to interfere with the award. The application stands to be dismissed
[28]
On the issue of costs, this Court has a
wide discretion in respect of costs and I am not convinced that this
matter should attract
costs; particularly, since the respondent
employees’ attorneys of record bailed out on them.
[29]
In the premises, I make the following
order:
Order
1.
The
application is dismissed with no order as to costs.
_________________
P Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
Applicant: Advocate
H Hutchinson
Instructed
by: Fluxmans
Incorporated
Third
Respondent: Nthabiseng
Mofokeng & 7 Others
(In persons)
[1]
Act
66 of 1995 as amended
[2]
(2007)
28 ILJ 2405 (CC) at para 110.
[3]
(2015) 36 ILJ 1493 (LAC).
[4]
[2003] 10 BLLR 1051 (LC).
[5]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at para 25.