IN THE LABOUR COURT OF SOUTH AFRICA
(Held at Johannesburg)
Case No. J2381/98
In the matter between:
FLEMING, MARTIN ASSET MANAGEMENT Applicant
and
NGWENYA, N.O First Respondent
LEISEGANG, JEANETTE Second Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Third Respondent
JUDGMENT
REVELAS, J :
[1] This is an application in terms of section 145 of
the Labour Relations Act, 66 of 1995 ("the Act"). The
applicant seeks to set aside an award made by the first
respondent in favour of the second respondent, the
erstwhile employee of the applicant.
[2] The second respondent had been in the employ of
the applicant for six weeks when her services were
terminated by the applicant on the basis of poor
performance and incapacity.
[3] The first respondent found that the second
respondent was not trained and received no proper
instructions, evaluation, guidance or counselling to
improve herself and render satisfactory work
performance. The first respondent consequently found
that the dismissal was unfair and awarded the applicant
compensation in the amount of R 64 614,40 which is
equal to ten months’ salary.
[4] There is no proper record in this matter and
consequently I am bound by the arbitration award of
the first respondent and the papers in the matter.
There are many disputes of fact in the affidavits as
well.
[5] In terms of the award, evidence was led before the
first respondent by Mr Linell of the applicant. He
alleged that there were attempts on the respondents
part to train the applicant, and that the nature of the
work situation at the applicant’s offices was such,
that ongoing training was part and parcel of the work
there. Evidence was also led before the first
respondent that the second respondent had been well
briefed as to the applicant’s methods of operation.
She, inter alia, was given a
voluminous Trust Deed which was essential for her to
read as part of her training, but she spent very little
time on it (only thirty minutes). She also treated
another important document given to her to study, as a
necessary part of her training, with an equal lack of
enthusiasm. The award reflects that a substantial part
of the evidence led before the first respondent, was
about the training which was indeed given to the second
respondent. This evidence was led by Mr Linell and the
first respondent did not reject his evidence anywhere
in his award.
[6] It is common cause between the parties that there
was at least one counselling meeting which took place
in Mr Linell's office which the second respondent
attended. I therefore fail to understand the first
respondent’s finding that there was neither counselling
nor training. To have made this finding, the first
respondent would have had to reject the testimony of
Mr Linell out of hand, which he did not do. If he did,
he should have said as much, and given reasons.
[7] The first respondent did not make a finding as to
procedural unfairness in this matter. His award reads
as follows:
"That the dismissal of the employee party by the employer party was not proved to
be fair, in terms of section 192(2) read with Schedule 8 (Code of Good Practice)."
[8] One has to infer from the fact that only section
192(2) is referred to, that the first respondent only
made a finding as to substantive unfairness.
Therefore the first respondent had a discretion with
regard to the amount of compensation he could grant in
this matter. He chose to exercise this discretion by
awarding the second respondent an amount equal to ten
months’ salary. That was for the period from the date
of the dismissal to the date of the arbitration
hearing. The applicant was on probation for six weeks
when her services came to an end.
[1] [9] Section 8 of the Code of Good Practice (“the Code”)
under schedule 8 of the Labour Relations Act 66 of 1995 as
amended, (“the Act”) imposes certain obligations on the employer
before dismissing a probationer for poor work performance.
The Code reads inter alia:
“A newly hired employee may be placed on probation for a period that is
reasonable given the circumstances of the job. The period should be determined
by the nature of the job, and the time it takes to determine the employee’s
suitability for continued employment. When appropriate, an employer should give
an employee whatever evaluation, instruction, training, guidance or counseling the
employee requires to render satisfactory service. Dismissal during the
probationary period should be preceded by an opportunity for the employee to
state a case in response and to be assisted by a trade union representative or
fellow employee.”
[10] On the evidence led by the applicant, the
aforesaid guidelines were followed. This evidence was
not rejected and the finding that there was no
training, was factually incorrect.
[11] The first respondent exercised his discretion to award
compensation to an employee on probation, for a very large amount,
without any proper finding of conduct on the part of the applicant,
which warranted such a punitive award as the one in question. Even
if there was no proper training but the employee does not wish to be
reinstated, and trained, and counselled, then in my opinion,
commissioners should be very cautious when granting compensation
awards as they may be punitive in nature. If the employee does not
wish to be reinstated, after the probationary period, then there is an
acknowledgement that an employment relationship is not feasible. A
probationary period is designed to see if the employee is a fit person
to perform the functions for which he or she had been appointed.
[12] It seems very unfair towards the applicant, who
employed the second respondent in good faith, to be
penalised because, in the opinion of a commissioner, he
did not train her, when there was evidence to the
contrary. The second respondent had an obligation to
respond positively to training during her probationary
period, and it does not appear that she did. She also
did not want to be reinstated. To award large amounts
as compensation to employees who were on probation, but
do not wish to be reinstated, could lead to abuse if
the discretion to grant compensation is not exercised
with due regard to all the facts.
[13] The first respondent did not consider at all, that
the second respondent was on probation when awarding
her ten months’ compensation after a working
relationship of only six weeks. The first respondent’s
conclusion is unjustifiable if one has regard to the
facts of the matter. The application for review should
therefore succeed. There would be no purpose in my
opinion, in sending the matter back to the Commission
for Conciliation, Mediation and Arbitration, as I
believe there is no reason why the second
respondent should be entitled to compensation.
Consequently, it is ordered that:
1. The award of the first respondent is reviewed
and set aside.
2. The second respondent is to pay the applicant's
costs in this matter.
.
E REVELAS
Date of Hearing: 28 October 1999
Date of Judgment: 28 October 1999
On behalf of Applicant :
Adv M van As
Instructed by Webber Wentzel Bowens
On behalf of Respondents :
Mr Ian McLaren
Instructed by McLaren & Associates