REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C1123/01
DATE OF HEARING: 09-09-02
DATE OF JUDGMENT: 13-09-02
In the matter between:
SERENITE WELLNESS CENTRE (PTY) LTD Applicant
and
THE COMMISSION FOR CONCILIATION, First Respondent
MEDIATION AND ARBITRATION
VICKY SMITH Second Respondent
SUSAN GALE Third Respondent
___________
J U D G M E N T
PILLAY D, J:
The background to this review in terms of section 145 of the
Labour Relations Act No. 66 1995 (the “LRA”) is as follows: In
November 1999 the applicant offered the third respondent
employment as a senior therapist. The third respondent declined
the offer. The applicant improved the offer by inviting the third
respondent to serve as manager and at a higher salary. The third
respondent accepted this offer. It is common cause that as the
third respondent was experienced in the hospitality, tourism and
therapy industries and not as a spa manager, the contract of
employment provided as follows at paragraph 1:
"1. Taking over full responsibility after three months and training in
case of absence of the assistant manager/manageress and/or the
spa owners or
general manager.
...
3. You will be required to serve an initial three month period of
probation. During this probationary period there will be a mutual
assessment on an ongoing basis to evaluate your performance,
skill, conduct, compatibility, knowledge and suitability. Subject to
the successful completion of the probationary period your
permanent employment to this position will be confirmed."
The third respondent commenced employment on probation as a
manager of the therapy centre on 2 May 2000. It is common cause
that on 20 July 2000 the applicant issued the third respondent with
a warning for poor performance, insufficient management and
organisational skills. The warning begins as follows:
"It has been 10 weeks that we have been watching your
performance
an trying verbally to guide you and to give you the proper input
that you need to manage the spa. All our talking, guiding,
directing, training and communication didn't help not to write this
letter of disappointment today. You have a very small amount of
people to manage and even with five therapists you have an
assistant manager who is perfectly skilled and professional and
prepared to help you at any time. There are many things that we
are not happy about, I would just mention a few of them."
The warning concludes thus:
"We are willing to give you two weeks more to improve your
service to the company and to demonstrate your management
skills. We expect you to organise the spa on your own and (not) to
phone reception constantly as they have their own load of
responsibilities. You have to be able to work self-sufficiently and
be responsible for the guests and their management. If that does
not improve within the next two weeks we will have no other
option as to follow further the prescribed procedures by labour law.
I would just like to point out your unacceptable behaviour when I
was not yet ready to talk to you and you wanted to enforce a
meeting with me. Furthermore, accusing me of verbal abuse is
absolutely unacceptable and I will not tolerate it anymore. I, as
your superior, have rights to talk to you and make an appointment
at a time which suits me and rights to present everything to you in
writing as I do not want to talk to staff in such matters without
witnesses."
There is no evidence of any prior written warning being issued or
any notes of counselling having been kept or given to the third
respondent. On the same day, the applicant issued the third
respondent with a final warning and summoned her to a
disciplinary hearing to be held on 24 July 2000 at 09h00.
On 24 July 2000 the third respondent lodged a grievance against
the Brands, the owners and representatives of the applicant, on
several grounds, including Mrs Brand's lack of professional
courtesy and decorum, her failure to provide training relevant to
the third respondent's position after stating in the first six to seven
weeks of the latter's employment that she was "the perfect person
for the job". This resulted in the disciplinary enquiry being
postponed and eventually heard on 7 August 2000.
The charges were:
a. not acting in good faith;
b. not showing the necessary respect for superiors, a reference to an
incident on 20 July 2000; and
c. the most serious conduct in breach of contract.
The enquiry was chaired by the applicant's labour consultant, who
found that the respondent had been given the necessary training
and guidance, that she was not performing to the standard and
recommended, as the alternative to terminating the contract of
employment, that she be offered the position of health therapist
consultant. A final written warning was issued on 8 August
2000.
On 17 August 2000, the applicant informed the third respondent
that it could no longer employ her as a manageress of the spa.
Her contract was terminated with effect from 10 August 2000. She
was then offered the position of a senior therapist from 20 August
2000 at a lower salary.
Through her attorney, third respondent declined the offer of
alternative employment. On 22 August 2000 the applicant gave
her further notice of the termination of her contract as spa
manageress with effect from 22 September 2000. Purportedly this
notice was on the grounds of the third respondent's alleged
“insufficient” performance as a manageress and “serious cases of
misconduct” against her. The applicant also accused the third
respondent of entering Mrs Brand's office and throwing away a fax
addressed to the applicant. This, it was alleged, was "another case
of serious misconduct and disrespect of a superior unheard of in
more than three decades of professional career".
On 6 September 2000, the applicant informed the third respondent
that the management and administration of the spa was
transferred to another employee, Anra Lubbe. The applicant
reserved its right to take legal action for damages if the applicant
received "any negative feedback from guests or staff members
about bad-talking or actions".
On 15 September 2000 the third respondent queried certain
deductions that had been made from her commission. Anra
Lubbe, who had since left the applicant, testified for the third
respondent as follows about this incident at the arbitration:
"Mrs Brand just absolutely lost self-control and I immediately
remembered of the day she slammed my hand on the door but she
totally, totally lost it. She called Susie over and over again what a
stupid bastard she was and she said to Susie that she is so
materialistic and that she has got everything in life - she's got a
husband, she's got children, she's got business and what has Susie
have, she's got nothing. And she kept screaming and screaming at
Susie what a stupid stupid bastard she was and she phoned her
husband and he came down and he asked Susie to leave the
premises and Susie said she would only do that if they give it to
her in writing. Susie was absolutely traumatised. I mean Elizabeth
actually looked like she was physically going to hit Susie, attack
her. She was coming up to her face close and I personally think
she called Dr Brand whenever she lost her temper because he
always calms her down.
MS GALE: Were there any witnesses there besides you? --- Ja my
friend Simone was doing a treatment at Steenberg Estate, the golf
estate. Vanessa, the manager there, she was actually receiving
her treatment at that stage from Simone and she was sitting
upright and she said to Simone 'who’s screaming that way?' and
they could hear that 'stupid bastard, stupid bastard, stupid
bastard' being yelled over and over again."
On 26 September 2000 the second respondent met with the
manager, Truter Hellman, to collect her salary. She was presented
with a prepared document which stated, inter alia, that she did not
have any further claims against the applicant or its owners. The
third respondent handed the letter to the applicant stating that she
will accept payment of all monies due to her under her contract of
employment without prejudice to her rights to refer the dismissal
dispute to the CCMA. She was then paid by cheque.
That night at about 23h03 she received an e-mail from the Brands
stating that they would cancel the cheques first thing the next
morning if they did not receive a fax stating that she would not go
ahead with arbitration. Payment of the cheques was stopped.
Tthe third respondent was eventually paid at the end of October
2000, after the intervention of her attorneys. The dispute was then
conciliated and arbitrated over two days on 13 July and 12
September 2001.
Against this factual background the Commissioner reasoned as
follows:
"It is relevant that the employee did not warrant she had previous
experience of managing a spa. Where the owner knowingly
appoints an employee lacking the required skills it has a more
onerous duty to offer the necessary assistance. (See Buthelezi v
Amalgamated Beverages Industry [1999] 9 BLLR 907 LC). The
responsibility lies with the employer to provide the employee with
the necessary support and engender a workplace climate in which
to perform. The Courts have said in the case of a trainee the
employer is obliged to give specific training (see Gostelow v
Datakor Holdings [1993] 14 ILJ 171 IC). It is not simply up to the
employee to perform correctly, but the employer has a key role in
developing this eventuality.
The Code of Good Practice: Dismissals states at item 8 that an
employer should give probationary employees appropriate
evaluation and instruction, training, guidance and/or counselling.
In Gostelow, supra, the Court held that the employer should
involve itself appropriately in assisting with under performance
and cannot simply adopt an armchair approach to the
underperformance. In addressing performance problems the
employer should have counselled much earlier than 20 July and
issued progressive warnings. Counselling implies a two-way
communication process where the employer spells out the
standard expected of the employee, points out the shortcomings
relative to the standard, allows the employee to respond to the
allegations; if necessary, engages in a joint problem-solving
discussion, gives assistance and then gives the employee a
reasonable opportunity to improve. This process is intended to be
motivational and pro-active. It is only after the counselling has
been done, preferably face-to-face, and when no improvement
occurs, that formal warnings should be issued. Mrs Brand relied
upon memoranda addressed chiefly to the therapists' minutes of
management meetings and Lubbe showing the employee the
ropes. This, in my view, did not constitute an appropriate
evaluation, instruction training or guidance. Although Mrs Brand
claimed she had spoken hundreds of times to the employee, no
instances of these discussions were led in evidence. There is
therefore no evidence of counselling before 20 July.
It is important to distinguish between warnings for poor
performance and warnings for misconduct. The incident where
Mrs Brand believed the employee to have accused her of lying is
an incident of misconduct and not a performance. Warnings are
usually progressive and are intended to correct the employee's
performance or conduct. It is clear that in issuing the final warning
on 20 July and simultaneously notifying the employee of a
disciplinary enquiry this is inconsistent and contrary to the purpose
of warnings - as no opportunity was given to change or improve
her conduct. Two allegations against the employees at the
disciplinary enquiry were for misconduct, the third being for under-
performance. A finding should have been made by the chairman,
Dr Brandt. Instead the second final warning dated 8 August is
issued for misconduct. No mention is made of the allegation of
under-performance. No evidence was led by Mrs Brandt that after
the warning for poor performance and receipt of the employee's
grievances in response thereto, that any meetings or discussion
between the parties took place in order to address these specific
issues. Neither was any evidence led that the issues of poor
performance had deteriorated after 20 July. It is therefore unfair
and unacceptable that the same allegations were raised by the
employers at the incapacity hearing. The period between 20 July
and 5 August, the date on which the notification for the incapacity
hearing was given, was two weeks and insufficient,
I determine, for the employee to acquire the management and
organisation skills.
In the case of poor performance it is preferable to consider
alternatives to dismissal. This had been proposed by the
employer and recommended by the chairman. When the
employee did not respond to the offer of demotion, for whatever
reason, it was appropriate to dismiss. Dr Brandt gave one month's
notice in terms of the contract, giving the reason as
underperformance. There then was the incident on 15 September
where the employee questioned deductions from her commission,
Mrs Brandt used abusive language and Dr Brandt ordered the
employee off the premises, thus prematurely curtailing the notice
period. This second dismissal is unprocedural, however, I exercise
my judicial discretion not to award compensation for this as it was
clear that the employee knew and accepted she already was on
notice. It was clear the relationship between the parties had
soured, the parties were more sensitive and neither, I deduce,
were inclined to make the relationship work for the duration of the
notice period.
I am satisfied that the notice period was paid in full.
In summarising, I determine that the procedure to dismiss for
incapacity had been unfair in that the inappropriate evaluation,
guidance, instruction had been given and insufficient and
inappropriate training had been given. The only attempt to
'counsel' the employee was done in writing on 20 July, two weeks
before the end of the probation period, and when the employee
responded, no meeting was held to discuss the issues. Instead a
disciplinary enquiry followed immediately by an incapacity
hearing.
In considering Schedule 8 Item 9 which sets out the guidelines
determining whether the dismissal was for a fair reason, I am not
persuaded that the employer made it clear what the performance
standards were. There is a difference between duties expected of
an employee and required performance standards. Mrs Brandt
attempted to set the standards in her letter of 20 July. It was clear
from the employee's evidence that she was aware of her duties
but not aware of the required performance standards prior to that
date. Where the employee was not aware of the employment
standards and then was given two weeks to attain those standards
without training, this cannot be regarded as a fair opportunity.
I find on a balance of probabilities, that the reason for the
dismissal was unfair."
The principal ground of this review is that the second respondent
allegedly committed gross irregularities in the conduct of the
proceedings within the meaning of section 145(2) of the LRA,
alternatively that the award was not justifiable. More specifically,
the applicant pleaded that:
1. The Commissioner accepted as evidence a 74 page statement,
allegedly prepared by the third respondent's attorneys.
2. The Commissioner allegedly denied the applicant an opportunity to
address her in closing after she specifically requested an
opportunity to do so.
3. The applicant's representatives were not informed that if they left
the arbitration without cross-examining then the third respondent's
version would be accepted.
4. The Commissioner had a duty to explain to the Brands the
consequences of leaving without cross-examining because they
were foreigners, not familiar with the adversarial proceedings.
5. The Commissioner failed to consider that the third respondent was
dismissed, not only for poor performance, but also for misconduct.
6. The Commissioner failed to consider the applicant's attempts to
counsel the third respondent for poor performance.
7. The Commissioner ignored documents which set out the third
respondent's remuneration and consequently miscalculated the
award of compensation by an extra R26 000,00.
8. The Commissioner failed to have regard to the fact that the third
respondent had received her final wages in full and final
settlement of any dispute against the applicant.
9. The Commissioner should not have disregarded the applicant's
offer of alternative employment to third respondent.
10. The Commissioner failed in her duty to determine the exact
origin of the third respondent's statement.
11. The Commissioner refused to accept written closing
argument from the applicant.
12. The Commissioner awarded compensation that was
objectively unjustifiable.
13. The proceedings were so confused and disjointed that it
would have been impossible for the Commissioner to make an
objectively justifiable award based on the evidence properly before
her.
Notwithstanding the last ground, the applicant persisted in its
prayer that the Court should determine the matter in favour of the
applicant. This prayer was, however, abandoned in the applicant's
heads of argument and substituted with a request that it be
referred back to another commissioner for a rehearing.
It is common cause that gross irregularity is one that results in
prejudice (Bester v Easi Gas (Pty) Ltd & Another 1993(1) SA 30
CPD 42-43; Moloi v Euijen & Others [1997] 8 BLLR 1022 LC).
12. It is also common cause that the third respondent and the
Brands, more particularly Mrs Brand, misbehaved at the arbitration
proceedings which were frequently interrupted by vitriolic
exchanges. Despite her five years experience, the Commissioner
had great difficulty in subduing the parties, especially Mrs Brand, in
order to manage the process. Mrs Brand's sense of self-
importance and arrogance is manifest from the following
utterances she made shortly before the Brands walked out of the
arbitration:
"I am the chairman of four charity organisations; business woman
in association with Pam Golding. I couldn't go to her birthday
today, I sent her flowers, because of that case. I am the chairman,
have been the chairman of Women International Club, who has
brought… I am in the Nelson Mandela Trust, I am in all kinds of
organisations trying, to bring to South Africa, now she's accusing
me."
Parties who are disruptive at arbitration cannot thereby earn
themselves a review later on the ground that the commissioner
failed to control the process. They are the authors of their own
misfortune insofar as they deny themselves the opportunity of a
fair hearing. However, this general approach is qualified by the
fact that it remains the duty of the Commissioner to ensure that
the process is fair and the award justifiable.
It is all very well for Mr Steltzner to submit for the applicant, as he
now does, that the Commissioner should have adopted an
inquisitorial approach to prevent the process from becoming
chaotic. That is speculative. I also doubt that an inquisitorial
procedure would have subdued the irrepressible Mrs Brand. If the
Commissioner was deprived of the opportunity of calm and
dispassionate observation, it was as a result of the bad manners of
the parties and not her own doing.
The applicant's main complaint was about the admission of the
third respondent's statement and related not only to its content,
which was an emotive mixture of evidence and argument liberally
sprinkled with vitriol, but also the manner in which it was
presented. The third respondent was allowed to read this
statement. In doing so she did not follow the sequence of the
script but read from different parts of it, thereby confusing the
Brands. As she was reading fast, they, as foreigners, had difficulty
in understanding her. This triggered their subsequent walk-out
from the process, so it was submitted for the applicant.
The reading of a statement in trial proceedings is not allowed as a
rule. Witnesses are required to give their evidence viva voce by
recollecting from memory. The reading of evidence from a
prepared statement creates scope for the coaching of witnesses.
However, as Mr Kahanovitz for the third respondent pointed out, it
may be permitted in certain situations, for example the
presentation of evidence of expert witnesses and formal evidence
such as at an inquest and the reading of contemporaneous
statements (S v Heller & Another 1964(1) 520 (W) at 521H-522C).
It is, therefore, not a per se irregularity such as that contemplated
by Mahomed, CJ in S v Shikunga & Another 2000(1) SA 616 NM SC.
If the Brands had difficulty in following the third respondent's
"evidence" they were neither shy nor fearful of the Commissioner
to ask for help. The Commissioner did assist them whenever they
were unable to follow the narrative by pointing out the parts of the
text being read. However, the Brands did not remain in the
process until the end to see whether the Commissioner would
address their concerns. The Commissioner was mindful that great
weight could not be placed on the statement.
Although she qualified in another jurisdiction, Mrs Brand was an
attorney. No person, least of all an attorney, can reasonably
assume that she can walk out of a statutory tribunal without
running the risk of prejudicing herself.
The Brands first indicated their desire to leave the process when
the third respondent started to make reference to the transcript of
the proceedings of the previous hearing. They were offered an
opportunity to study the transcript, which they declined. They
remained in the process for a substantial part of the presentation
of the third respondent's case. Their parting statements were,
inter alia:
"ARBITRATOR: I'm really saying please do not walk out. MRS
BRANDT: Yes I will I have proven all the documents, please if you
can record that I have proven all the warning incapacity, I have
(done) everything I could do. I have been advised by the Labour
Law Act, I have been advised by the lady which is the CCMA, South
Africa, the black lady which has stayed with us which you can see
her comments here I have been advised by her what to do. She is
the director of CCMA, South Africa.
ARBITRATOR: Alright Madam, I really - the same lady...
[intervention]
MRS BRANDT: No I told you...[intervention]
ARBITRATOR: That same lady would advise you not to leave right
now...[intervention]
MRS BRANDT: Yes but fine I am just...[intervention]
ARBITRATOR: and we've had this discussion before, I really don't
believe it's in your interest.
MR BRANDT: No, but I don't want -, but you see that case has
been prepared by an attorney...[intervention] You will award
whatever you want to do Ms Smith.
ARBITRATOR: …is quite (indistinct), you know, quite (indistinct)
part of the process...[intervention]
MRS BRANDT: It's in your hands. Exactly. It's in your hands You
can award whatever you want to award.
ARBITRATOR: Do you understand...[intervention]
MRS BRANDT: I have got rights to go further...[intervention]
ARBITRATOR: You have.
MRS BRANDT: …to go to Labour Court, to advise my attorney.... I
have been working in a professional she's going to tell you now
how I must run my own business, which I have invested millions
and millions and millions and I've given employment to so many
people in South Africa and now she's going to tell me how I must
run my business Mrs Brandt. I want to reserve my rights today,
here, I want to be recorded I want to reserve my rights that...
[intervention]
ARBITRATOR: That's what you said at the beginning.
MRS BRANDT: That's it, I will consult tomorrow with top attorney
which I know them in Cape Town. I pay them R1500 or I will go my
way. That's what I'm going to do, because I don't need...
[intervention]
ARBITRATOR: Okay, but you do understand that I have to
proceed?
MRS BRANDT: Yes, you can proceed.
ARBITRATOR: Okay.
MRS BRANDT: You can proceed you are welcome to proceed."
The appeal to this Court to find that the Brands were helpless and
overwhelmed by the process is unconvincing. The complaint that
the Commissioner did not warn them of the consequences rings
hollow. The Commissioner appealed to the Brands to remain in the
process on several occasions. They were also in contact with their
legal advisers.
The Brands' principle objection to the reading of the statement was
because they believed that it had been prepared by the third
respondent's legal representatives. Besides the direct and
undisputed evidence of one Paul Cole, who delivered an affidavit in
the review application confirming that he had assisted the third
respondent in preparing the statement, the applicant persisted
that the content of the statement evidenced the assistance of an
attorney. This submission is entirely speculative.
I am not persuaded that the Brands did not understand the third
respondent's narration. They periodically dismissed it as "an
abuse". In the circumstances, even if the Brands could not follow
the proceedings when the applicant was reading her statement
and did not have the opportunity to cross-examine, they have no
one but themselves to blame. (Gimini Indent Agencies CC t/a S & A
Marketing v CCMA & Others [1999] 20 ILJ 2872 LC at paragraphs
8-11)
The Commissioner had also repeatedly reminded the parties of
their right to be cross-examined.
The Commissioner had indicated that the applicant would have an
opportunity to address her in closing. By a letter dated 16
September 2001 the Brands explained that they left the arbitration
because they considered the third respondent's alleged attacks on
them personally for more than three hours were not in line with the
purpose of giving evidence about proper work performance and
the dismissal. The third respondent's evidence, they said, was
simply an ongoing violation, victimisation and "dismantling" of
their personalities. They then stated that the final closing
statements would be delivered within 14 days.
This they said without first having obtained leave of the
Commissioner. On leaving the process, Mrs Brand had said that
the Commissioner could go ahead and make the award. There was
therefore no need for the Commissioner to anticipate further
submissions. Whether the closing argument ever came to the
attention of the Commissioner is not evident. There is also no
evidence that the Commissioner refused to consider the closing
argument. This ground of review is not sustainable on the
evidence before me.
From the extract of the Commissioner's reasoning quoted above, it
is clear that the Commissioner did consider the charges of
misconduct against the third respondent. By focusing on incapacity
as being the reason for dismissal the Commissioner de-emphasised
the significance of the alleged misconduct. This was to the
advantage of the applicant, as it would appear from the award that
the Commissioner was not convinced of the fairness of the
dismissal for misconduct. In any event she was not prepared to
award any compensation to the third respondent on that ground.
On the facts before her the Commissioner's finding that there was
no evidence of any discussions after the warnings for poor
performance was issued on 20 July 2000 was entirely justifiable.
She also found that the applicant should have counselled the third
respondent earlier than 20 July 2000 and issued progressive
warnings. The only attempt to counsel the third respondent, she
concluded, was done in writing on 20 July 2000, that is two weeks
before the end of the probation. This ground of review must also
fail.
The contention that the Commissioner should have had regard to
the third respondent having received her wages in full and final
settlement of any disputes between the parties, can also not
succeed as the applicant did not raise at the arbitration or as an in
limine ground of review in these proceedings that the dispute had
been settled. The evidence of the alleged settlement was more
disadvantageous to the applicant as it appeared to be aimed at
depriving the third respondent of her right to refer the dispute to
arbitration.
Whether the third respondent was offered alternative employment
is irrelevant as the applicant has failed to prove that the third
respondent had performed poorly, despite being trained and
counselled.
A further ground of review raised in argument was that Ms Lubbe
was assisted by the third respondent who provided her with notes
to prime her. Ms Lubbe stated at the arbitration that the note was
not even about the question that was being asked and offered the
note to Mrs Brand to see. Apparently satisfied with what she saw,
the arbitration continued. To raise this as a ground of review now
is spurious.
With regard to the calculation of the applicant's remuneration, the
third respondent’s evidence was contradicted by the documentary
evidence. The Commissioner ought to have reconciled these
contradictions. In terms of the contract of employment the
applicant's gross remuneration at the time of the dismissal was R7
974 per month and not R9 394, as stated by the Commissioner.
But for the computation of the compensation, the award is
manifestly rational and justifiable on the basis of the material
properly before the Commissioner. Even if the third respondent's
“evidence” in the form of the statement is ignored altogether, the
award is sustainable purely on the evidence of the applicant and
the common cause facts. Furthermore, the disruption of the
process by the parties did not prevent the Commission from
applying an objective and judicious mind to the dispute.
In view of these findings, I have not dealt with the other grounds of
review which were, in any event, not in themselves sufficient to
overturn the Commissioner's decision.
With regard to costs I take into account that the applicant was
partially successful. The award must, therefore, be corrected. I
grant an order in the following terms:
1. The award of the Commissioner dated 4 October 2001 under
CCMA case number WE37589 is reviewed and corrected by the
substitution of the following:
"The employer shall pay the employee compensation of 12
months' remuneration at the rate of R7 974 per month payable in
12 equal instalments of R7 974 subject to normal tax, the first
payment being made on 1 November 2001 and on the first of each
subsequent month thereafter, failing which the outstanding
balance will become due within seven days of any payment not
being made and interest at the rate of 15.5% shall become
applicable."
2. The applicant shall pay 60% of the third respondent's
costs.
________________
JUDGE D PILLAY
FOR THE APPLICANT : ADVOCATE STELTZNER
INSTRUCTED BY : ATTORNEY IRISH ASHMAN
FOR THE RESPONDENT : ADVOCATE KAHANOVITZ
INSTRUCTED BY : BERNADT VUKIC POTASH & GETZ