NOT
REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
CASE NO: JR 1482/01
In the matter between:
ATHOLHURST SCHOOL Applicant
And
KOORTS, ME N.O First Respondent
CCMA Second Respondent
BERGER, TERESA Third Respondent
JUDGMENT
MASERUMULE AJ:
1. The applicant seeks an order in terms of section 145 of
the Labour Relations Act. 66 of 1995, ( Athe Act@) to set
aside an award made by the first respondent in favour
of the third respondent, ordering payment to the latter
in an amount of R17 5000, based on a salary of
R3500-00 per month.
2. The applicant is a school that caters for children with
learning disabilities and special needs. The majority of
these children suffer from one syndrome or another.
3. The third respondent applied for a position as a teacher
at the school. She was interviewed and was offered the
position. She worked for the applicant from 17 January
2001 until 22 or 23 February 2001.
4. On review, the applicant has alleged that the third
respondent was employed on a fixed term contract for a
period of two weeks, which was then extended to three
weeks, as a Atrial period@ and not a probationary
period. The record of the proceedings at the CCMA
indicates that the applicant=s legal representative dealt
with the matter on the basis that the third respondent
was in fact on probation.
5. Third respondent employment with the applicant
terminated on 13 March 2001. The applicant contends
that her fixed term contract expired whereas the third
respondent claimed that she was dismissed, and
unfairly so.
6. The first respondent concluded that the third
respondent had been dismissed and that her dismissal
was both procedurally and substantively unfair. He
found that applicant =s evidence with regard to its
reasons for terminating third respondent =s
employment was vague and that he was consequently
unable to determine what the precise reasons for her
dismissal were. However, he suspected that it was
related to third respondent =s alleged poor work
performance, which he found not have been proved.
Lastly, he found that the third respondent was not given
an opportunity to respond to whatever the reasons were
for her dismissal, which made the dismissal
procedurally unfair.
7. The first ground of review relates to the submission that
the first respondent failed to make a finding as to
whether or there was a dismissal. There is no merit in
this submission. Nowhere in the record of the arbitration
proceedings does it appear that the applicant disputed
the existence of the dismissal. On the contrary, in her
opening address at the CCMA, Ms Salojee, incorrectly
referred to as Selicky in the record, dealt in a fair
amount of detail with what is required of an employer
before dismissing an employee who is on probation and
set out applicant =s case as being that the third
respondent was indeed on probation, that this was for a
period of three weeks and that this period was
reasonable in the circumstances.
8. The applicant=s contention that there was a trial period
based on a fixed term contract of employment is
fanciful in the extreme. The label that the applicant now
seeks to attach to the Atrial@ period does not change its
true nature. Indeed, Mrs Atkinson, the principal at
applicant, made no reference to a fixed term contract.
Her evidence clearly indicates that the three-week
period was meant to enable the applicant to determine
third respondent=s suitability as a teacher t the school.
That is a probationary period. Termination of the
employment contract constitutes a dismissal. This first
ground of review must accordingly fail.
9. The applicant does not attack the first respondent =s
finding that having found that there was a dismissal,
such dismissal was both procedurally and substantively
unfair. In the light of the evidence, the implied
acceptance of the correctness of this finding is well
made.
10. The second ground of review relates to the amount of
compensation awarded to the third respondent. The
first respondent awarded compensation in accordance
with the strict terms of the provisions of section 194(2)
of the Act, read with section 194(1). The award was
made prior to the promulgation of the amendments to
section 194 of the Act.
11. In passing, I need to commend the CCMA for having
conciliated and arbitrated this dispute within a period of
five months. This is in keeping with the spirit of the Act
to have disputes finalized as expeditiously as possible.
12. The applicant alleges that the third respondent was in
applicant=s employ for a period of three weeks only.
This is incorrect. It is clear from the evidence that the
third respondent continued teaching after 31 January
2001 and only stopped on 22 or 23 February 2001. The
decision to terminate her services was only taken later,
after another applicant for the position that had been
offered the third respondent had completed her
probationary period and was appointed on a permanent
basis. The third respondent was thus employed for a
period of at least six weeks and not three, as alleged by
the applicant.
13. Applicant=s evidence at the arbitration hearing that the
school is a non-profit institution was not disputed.
14. The first respondent concluded that in his view,
Acompensation would be the appropriate remedy .@
Whilst the award does indicate that it is but a summary
of the evidence and argument, the first respondent
indicated in the Rule 7A notice that he did not wish to
add anything to the reasons already given in the award.
15. It is now trite that a person in the position of the first
respondent needs to exercise his discretion on whether
or not to award compensation, before actually awarding
compensation in terms of the formula prescribed by
section 194. There is nothing in the award to indicate
that the first respondent considered first, whether or
not to exercise his discretion in favour of awarding
compensation, before he actually did so. The factors
that would have been relevant for the exercise of his
discretion, as established in evidence, including the fact
that:
15.1 the third respondent had only been in applicant =s
employ for a period of six weeks;
15.2 in discussions between Mrs Atkinson and the third
respondent, Mrs Atkinson offered to re-employ the third
respondent in the event that the school could find
enough children to create an extra-class for younger
children whom she felt the third respondent would be
able to cope with;
15.3 the applicant is a non-profit educational institution, with
limited resources.
16. I am in agreement with applicant =s submission that the
first respondent did not properly apply his mind to the
available evidence in making the award that he did. In
particular, he failed to consider whether or not he
should exercise his discretion in favour of granting
compensation, before he actually did so. In the light of
the factors that would have been relevant in the
exercise of his discretion, the only conclusion that can
be arrived at, in view of the compensation awarded, is
that he failed to take them into account.
17. The amount of compensation awarded is out of
proportion to the harm inflicted on the third respondent,
cf Roux v Rand Envelope (Pty) Ltd (1999) 20 ILJ 2183
(CCMA) at 2188. This warrants interference by the
Court.
18. It was common cause during the arbitration hearing
that the third respondent was not paid any notice pay.
She was entitled to such notice pay. In the absence of
an agreement providing for a notice period, section
37(1)(b) of the Basic Conditions of Employment Act, 75
of 1997, ( Athe BCEA @), prior to its amendment,
provided for a notice period of two weeks for employees
who have been employed for a period of four weeks or
more, but less than one year. The third respondent was
such an employee. In terms of section 74 of the BCEA, a
commissioner or this court is entitled to also order the
payment of any monies which may be due to an
employee in terms of any of its provisions when
considering a dispute about the fairness or otherwise of
a dismissal..
19. I accordingly make the following orders:
19.1 the award made by the first respondent, in so far as it
orders the applicant to pay third respondent
compensation in the amount of R17 500-00 is hereby
reviewed and set aside and substituted with an order
that the applicant must pay the third respondent two
weeks= notice pay in the amount of R1750-00;
19.2 there is no order as to costs.
____________________
MASERUMULE AJ
On behalf of applicant: Adv HM Viljoen instructed by Jeff
Donenberg & Co.
Date of Hearing: 6 August 2002
Date of Judgment: 8 August 2002