IN THE LABOUR COURT OF SOUTH AFRICA HELD AT JOHANNESBURG
CASE NO: J934/97
In the matter between
LYDIA NTHEBO BUTHELEZI Applicant
and
AMALGAMATED BEVERAGE INDUSTRIES Respondent
JUDGMENT
de VILLIERS A J
1 This is a referral by the Director of the Commission for Conciliation,
Mediation and Arbitration (Athe CCMA@), in terms of section 191 (6) of
the Labour Relations Act 66 of 1995, concerning the termination of the
Applicant=s employment contract by the Respondent after a 16year
employment relationship between them.
2 Facts pertinent to the determination of this dispute are as follows.
3 Late in 1995 the Applicant was promoted to the position of Public
Relations Officer from a position of telesales clerk where she had worked
for many years, moving up three grades on the Peromnes scale. Despite
the fact that, according to the human resources personnel and a
psychometric test, she lacked key competencies for the job, the general
manager of the Respondent=s Devland branch appointed her to the
position because he believed she had required attributes it was
necessary to have a black person in the position because he/she would be
required to work in the Soweto market. He also believed that, with training,
she would perform adequately.
4 On 1 August 1996 she was relieved of her duties as PRO and the
Respondent offered to reinstate her in a telesales clerk postion, an offer
which she rejected out of hand as being an Ainsult@. She was then
offered the position of customer care clerk. According to the Applicant, she
provisionally accepted the offer by way of a letter dated 2 November 1996
which, she said, she intended handing over to the Respondent at a
meeting scheduled for 4 November 1998. When the meeting did not take
place, she did not hand the letter over to anyone else because Ait was not
possible to hand over the letter@. (According to the Respondent, this
letter only materialized at a subsequent CCMA arbitration.) According to
the Respondent, she turned down the offer because, according to the
minutes of a meeting Athe travelling would be too much@. In the letter she
says she has Ano choice but to accept the offer. Provided you can provide
me with means of transport@. She was then considered for the position of
a Channel Assistant but was unsuccessful following a negative result of
another psychometric test and a Astructured@ interview,
5 On 12 February 1997 the Respondent terminated her services Adue to
incapacity@.
6 It would not serve any purpose to burden this judgment with a detailed
summary of the evidence which dealt with Applicant=s alleged
shortcomings, who was to blame and whether she was on probation or
not. There were many allegations and counterallegations. What is
material is that at the end of July 1996, when the Respondent relieved the
Applicant of her duties as PRO, the Applicant herself acknowledged in
evidence that nothing short of a full time six month PRO and business
skills training course would be required to enable her to perform
adequately in that position.
7 What the Applicant is aggrieved about and what she believes rendered her
dismissal unfair, is that the Respondent, having promoted her to a position
for which it knew she was not qualified:
1.7.1 was obliged to take reasonable steps to assist in improving her skills and
performance and failed to do so;
2.7.2 failed to fulfill its own undertakings with regard to training and support;
3.7.3 did not allow her sufficient time to improve her performance (following the
training which it did provide) before removing her from the position; and
4.7.4 failed to give adequate consideration to alternative positions for the
Applicant before dismissing her.
8 It is common cause that, for the first few months, the Applicant was left
largely to fend for herself despite an undertaking made at the time of her
appointment that she would be given the training necessary to enable her
to perform. She testified that she did receive some assistance during this
period from the general manager, an Ernest Mchunu, and found his
assistance helpful. (It appears from one of the documents handed in by
agreement dated 23 January 1996 (Exhibit 197 in the bundle) that she
was also receiving feedback on her performance from Wilson
Communications South Africa during this period. However, this aspect of
the letter was not canvassed in evidence and I have therefore attached no
weight to it.)
9 The Respondent then deployed one of its Channel Managers (Sabino
Pantone) from its Benrose branch to its Devland branch three days a week
to provide personal support and supervision.
10 At a meeting on 28 February 1996, the Respondent, after a lengthy
counselling session, agreed to discuss an action plan which would include
the following interventions for the Applicant:
1.10.1 an induction course during which the Applicant would spend time in
different departments;
2.10.2 basic computer skills training;
3.10.3 software training
4.10.4 assertiveness training relative to her personal performance; and
5.10.5 business communication and writing skills training
11 The Respondent then arranged for the Applicant to attend an intensive
fourweek oneonone PRO training course with Wilson Communications
South Africa, an AfroAmerican consultancy, at a cost of some R10 000.
12 It also emerged from the evidence that, in some respects, the Respondent
failed to fulfill its own undertakings and failed to follow the
recommendations of Wilson Communications regarding the Applicant=s
training requirements.
In particular, it failed to send her on the promised induction course, it
failed (apart from a brief intervention at the end of the Wilson
Communications course) to assist in improving her business
communication and writing skills and it failed to provide the Applicant with
a clear job description or assist her to formulate a strategic business plan.
(There appeared to be some dispute during the course of evidence as to
whether the Applicant was or was not aware of the standard job
description for the Respondent=s PROs. However, according to the
Respondent=s own documentary evidence B the minute of the
Applicant=s appeal hearing B Pantone stated that no job description
existed for her.) Although it provided some training in computer and
software skills, it only provided the Applicant with a computer some eight
months after she had taken on the position.
13 The Applicant argued that the failure to implement the recommendations
demonstrated an indifference to her development and that, had she had a
clear job description and a business plan, this would have gone a long
way towards addressingt the difficulties which the Respondent was
experiencing with her lack of judgment relative to setting priorities and
developing strategies. The Respondent, in turn, argued that the
Applicant=s shortcomings were of such a nature, so Adeep seated@, that
no reasonable further effort on the part of the Respondent would have led
to an improvement. Therefore, further training would have been a waste of
time and money and it would have been Adisingenuous, even heartless@,
to have given her a further period in which to improve her performance.
14 The circumstances of the Applicant=s dismissal do not fit neatly into any
established norms.
15 At the outset I accept that the Applicant was appointed on merit, albeit
without some of the necessary competencies required for the job. The
Respondent had good reason to consider her for the position B she had
been with the Respondent for 16 years and must have known the
business well.
Apart from some difficulties with her time keeping, she appears to have
performed well in the telesales position which she occupied prior to her
promotion. According to the psychometric assessment report prepared at
the time she was being considered for the promotion, she is recorded as
having a Astrongly outgoing style and presentability@, Athe ability to
make a positive impact on people@. She came across as Aspontaneous,
enthusiastic and easy going@. She seemed able to Amake contact with
people freely and easily@. She had strong Ainterpersonal skills@. On her
own version, the Applicant believed she Ahad what it takes@.
16 These attributes, coupled with her ability to work comfortably within the
Soweto community B the target market for the Devland branch because
of her race and language skills, certainly recommended the Applicant for a
PROtype position and I am therefore satisfied that she was not promoted
as a candidate on the Respondent=s Employment Equity programme
thereby entitling her to the same considerations as those afforded to
employees who were selected specifically for the programme.
17 On the other hand, because the Respondent promoted her knowing that
she did not have some of the necessary skills and experience, it was
required, up front, to provide something more than it would to an employee
whom it believes, on all available evidence, had the necessary skills and
attributes to perform effectively from the beginning.
18 The Respondent, in this case, went quite a long way, albeit somewhat late
in the day, towards providing the Applicant with something more than it
would be expected to provide any other employee in the ordinary course.
However imperfect Pantone=s intervention may have been (and there was
some evidence that he was not as enthusiastic or proactive about this task
and not as available as he might have been), he was made available to
the Applicant three days a week and she could call on him for assistance
as and when she needed him. Sending her on the customized Wilson
Communication course where she received intensive, personalized
training, full time, over a four week period at a cost of some R10 000 was
a more than reasonable attempt by the Respondent to fill some of the
gaps.
19 Even if I accept the Respondent=s argument and to a large extent I do
that in order to bring the Applicant Aup to speed@ the Respondent would
have had to invest considerable resources in her which, at the end of the
day, might not have addressed the Applicant=s deficiencies because they
were too Adeep seated@ and that further training would not have made a
material difference, what concerns the Court is the Respondent=s failure,
at the very least, to follow its own programme of action or to follow up on
some of the key recommendations made by its chosen consultant, Wilson
Communications.
20 In terms of the Code of Good Practice (Schedule 8 to the Labour Relations
Act) when determining fairness, the Court has to weigh employment
justice against the efficient operation of the business. Employment justice
cannot be served by an employer who, as the Respondent did, enters into
a lengthy counselling session during which the employee=s deficiencies
are listed, devises a plan of action, and then fails to implement key
elements of the plan and takes no account of key recommendations made
by its chosen consultant regarding what action should be taken in order to
assist an employee to address the deficiencies in their performance.
21 To permit an employer to ignore the plan which is the result of a
counselling process and the recommendations of the consultant chosen
by it to remedy the employee=s shortcomings, because they may not be
enough to address the shortcomings, devalues the whole notion of
counselling for poor performance and the remedial action that emerges
therefrom. The plan which emerges from the counselling process and the
implementation thereof is the essential element of procedural fairness in a
dismissal which is related to an employee=s competence. The whole point
of a counselling session relative to the performance of an employee is to
devise a plan to address the deficiencies. Once an employer enters into
the counselling process, in order to give the employee a fair chance at
the counselling process, in order to give the employee a fair chance at
succeeding, it is incumbent upon the employer, at the very least, to give
effect to the outcome of the counselling process, implement the remedial
action and allow some time to elapse to assess whether the plan is having
the desired effect. Failure to do so renders the counselling process
meaningless.
22 When an employer appoints someone to a position whom it acknowledges
may not meet all the requirements for that position, it is under an even
greater obligation to adhere to its remedial plans for that employee. While
employers should not be unduly prejudiced for taking a chance on an
employee who may have key attributes for a position but not all the key
competencies, there is a greater obligation on that employer to devise a
remedial plan and stick to it before taking action against the employee
because he/she has not succeeded.
23 This the Respondent failed to do and hence a material part of the
procedure which ultimately led to the dismissal of the Applicant was unfair.
24 One cannot quibble with the way in which the Respondent acted after it
decided that the Applicant was not capable of performing her role as PRO
without a fairly substantial injection of resources into her development
which, I am satisfied, the Respondent, weighing employment justice
against the efficient operation of the business, could not have been
expected to provide.
On the Applicants own version she would have had to attend a full time
PRO/business skills course for at least six months before she would be
capable of performing adequately in the position. To have allowed her this,
having already singled her out for the customized, personalized,
expensive Wilson Communications intervention, would have opened the
Respondent up to demands from other employees for similar treatment
and accusations of behaving inconsistently if those demands were not
and accusations of behaving inconsistently if those demands were not
met. The Respondent took a risk in promoting the Applicant and, having
done so, provided personal supervision by way of Pantone and exposed
her, at some cost, to highly specialized training. It could not reasonably
have been expected to do more. Then, having decided that the Applicant
was incapable of performing adequately, it relieved her of the position and
engaged in a process of seeking alternatives over a period of seven
months. During this period, her grievance concerning the Ademotion@
was considered at a full hearing before further alternatives were explored.
1 I accept that had the Applicant conveyed her albeit provisional acceptance of
the customer care clerk position to the Respondent she would still have
been employed by the Respondent. Her failure to do so still requires
explanation. Her explanation that she did not do so because the meeting
at which she intended to hand in the letter did not materialize borders on
the absurd. The letter is addressed to a L Plumstead who the Court
understood to have been employed in the Human Resources Department.
Despite being given several opportunities during cross examination to
provide an explanation as to why she did not deliver the letter to Ms
Plumstead or anyone else in the department, she failed to do so merely
saying that Ait was not possible to hand over the letter@. On re
examination, she was adamant that she would have taken the customer
care position despite the amount of travelling involved and that she would
not have taken action against the Respondent if she had communicated
her acceptance to the Respondent and they had Ainsisted@ on
Ademoting@ her.
2 Hence, I am satisfied that the Respondent did take reasonable steps to
assist in improving the Applicant=s competencies and gave
adequate consideration to alternative positions for the Applicant
adequate consideration to alternative positions for the Applicant
before dismissing her. Where it fell short, was in failing to fulfill its
own undertakings with regard to training and support and not
allowing her sufficient time to improve her performance (following
the training which it did provide) before removing her from the
position as PRO at Devland which, even if this had proved futile at
the end of the day, would have made the entire procedure fair.
3 I therefore find that the dismissal of the Applicant was unfair because it
was not effected in accordance with a fair procedure but that there was a
fair reason, related to her capacity, to dismiss her.
1 Having established that, I now turn to a consideration of appropriate relief.
1 Much was made, during the hearing, of an article in the City Press
newspaper concerning the Applicant=s dismissal. Had the Applicant been
entitled to reinistatement or reemployment this evidence would have been
material. Both the tone and appearance of the article, which goes out of its
way to soil the Respondent=s public image, indicates an active and willing
participation by the Applicant (despite her denial of this in evidence).
Hence I would have been persuaded by it that, by participating in it, the
Applicant had made continued employment intolerable and denied her
reinstatement or reemployment . While employees have a right to freely
express their grievances against their employers in the press, they do so
at the risk of forfeiting their right to reinstatement or reemployment
because high profile mudslinging particularly where an employer=s
business depends on a positive public image makes a continued
employment relationship intolerable.
2 In any event, Johnson & Johnson (Pty) Limited v Chemical Workers
Industrial Union [1998] 12 BLLR 1209 LAC, the Labour Appeal Court
suggests, at 1219GH, that an interpretation of the wording of section 193
(2) excludes reinstatement or reemployment as remedies in a dismissal
(2) excludes reinstatement or reemployment as remedies in a dismissal
thatis only procedurally unfair and confines an adjudicator to award
compensation in this event.
1 In addition it held that a Court or arbitrator finding that a dismissal is unfair only
because a fair procedure was not followed has a discretion whether to
award compensation or not. If the Court elects to order payment of
compensation it is bound to award the statutory minimum set out in
section 194 (1) which is an amount equal to the remuneration the
employee would have received between the date of dismissal and the last
day of the adjudication or arbitration.
1 The only guidance given by the Labour Appeal Court as to how this Aall or
nothing@ discretion ought to be exercised is at 1220A where Froneman
DJP says the discretion not to award compensation must be exercised
judicially and at 1220CD where he says the following:
"The nature of an employee's right to compensation under s.194(1) also implies that
the discretion not to award that compensation may be exercised in
circumstances where the employer has already provided the employee with
substantially the same kind of redress (always taking into account the
provisions of s.194(1)), or where the employer's ability and willingness to make
that redress is frustrated by the conduct of the employee."
1 In judgments subsequent to the Johnson and Johnson decision, in exercising
its discretion and deciding what constitutes Asubstantial redress@ on the
part of the employer or Afrustration by the conduct of the employee@,
the Court has introduced the principle of fairness and has also taken the
degree of the employer=s departure from the requirements of procedural
fairness into account when deciding whether to award the statutory
minimum imposed by section 194 (1), or nothing. (See Whall v Brandadd
Marketing (Pty) Limited J1130/97 unreported ; Lorentzen v Sanachem
Marketing (Pty) Limited J1130/97 unreported ; Lorentzen v Sanachem
(Pty) Limited D637/98 unreported; de Bruyn v Sunnyside Locksmith
Suppliers (Pty) Limited J361/98 unreported).
1 As Grogan AJ points out in Whall v Brandadd Marketing (Pty) Limited
(supra) at paragraph 37:
The sole guiding principle mentioned by the Labour Appeal Court on whether not to
grant compensation (or indeed whether to grant it) is that such decision must
be exercised judicially. Guidance as to how such a discretion should be
exercised must be derived from the purposes of the Act as a whole, read within
the broader Constitutional context, and of sections 193 and 194 in particular.
When exercising the discretion as to whether to grant compensation the Court must, in
my opinion, have regard to what is fair to both the employee and the employer.
One of the purposes of the Act is to protect employees against unfair dismissal
(section 185). Others are to advance economic development (section 1) and to
effectively resolve labour disputes (section 1 (d)(v)). While the punitive effects
of section 194(1) may be ameliorated by the (implicit) limit of compensation to
the equivalent of 12 months' remuneration, the decision as to whether to order
compensation must nevertheless in my view be exercised with the above
considerations in mind.
1 In this case more than two years has elapsed between the date of the
Applicant=s dismissal and the last day of the hearing of this dispute.
Following the reasoning of Maserumule AJ in Vickers v Aquahydro
Projects (Pty) Limited D424/97 unreported , I believe the Court must limit
compensation for procedural fairness to an equivalent of the remuneration
the employee would have earned over a 12month period. If the Court
exercised its discretion in favour of ordering the Respondent to pay
compensation to the Applicant, the Court would be bound to award the
Applicant that amount.
1 To do so, I believe, would be grossly unfair to the Respondent for the following
reasons.
0.1 The degree of the Respondent=s failure to follow a fair procedure in
the context of the entire process which led to the Applicant=s
dismissal was not that great. In this regard, I have attached
considerable weight to the fact that the Respondent spent some
seven months attempting to seek alternatives for the Applicant and
to the Applicant=s failure to convey her acceptance of the customer
care clerk position to the Respondent . By her own admission and
on the evidence of the Respondent=s witnesses, had that
acceptance been conveyed to the Respondent, she would not have
taken issue with the Respondent in this Court and would still be in
employment. To this extent, the Applicant was the author of her
own misfortune and to expect the Respondent now to pay the
Applicant a year=s salary would be grossly unfair.
0.1 The Applicant received substantial benefits from occupying the
PRO position for some nine months. She jumped two grades in
salary and was provided with a company car which she retained for
a few months even after she had been relieved of the PRO position.
The Respondent took a risk in promoting the Applicant and the
Applicant benefited from that risk. It would be unfair to penalize the
Respondent so heavily because the risk did not pay off.
0.1 The Applicant=s grievance about the Ademotion@ received the
Respondent=s full attention at a formally convened hearing.
1 Fairness thus demands that I exercise my discretion in favour of not
granting payment of compensation to the Applicant.
1 The Respondents are not seeking a costs order against the Applicant.
1 I therefore make the following order:
0.1 The reason for the Applicant=s dismissal was a fair reason related
to the Applicant=s capacity.
0.1 The dismissal of the Applicant was not effected in accordance with
a fair procedure.
0.1 There is no order for relief or costs.
YYYYYYYYYYYYYY..
I de VILLIERS A J Acting Judge of the Labour Court
Date of Hearing : 12 April 1999 to 15 April 1999 Date of Judgment : 11 June
1999 For the Applicant : Advocate Paul Jammy
instructed by Julian
Hurwitz Attorneys For the Respondent : Advocate Martin
Brassey SC instructed by Rooth and Wessels