The factual matrix from which this judgment arises concerns a dismissal of employees due to poor work performance. The Employer Moneyline Financial Services (Pty) Ltd dismissed the Third Respondent and 7 others (“the Employees”) who were employed in capacity as sales representatives. Following such dismissals, the matter proceeded to arbitration proceedings where it was found that the dismissals were procedurally fair but substantively unfair, subsequently ordering the reinstatement of the Employees with back pay. It is on this basis that the Employer brought a review application to the Labour Court seeking an order to review and set aside the arbitration award.
The dismissals emanated from the Employees failure to meet sales performance targets set by the Employer. Such action was preceded by 2 (Two) written warnings and thereafter, the Employees were given the opportunity to make written representations as to why performance targets were not met.
In the CCMA, and in addition to what is stated above, the Commissioner concluded that the dismissals were not an appropriate sanction as training could have been a reasonable alternative.
On analysis of the Labour Relations Act (LRA), Act 66 of 1995 (as amended) (LRA): Code of Good Practice on Dismissals which provides, inter alia, 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 –
- whether or not the employee failed to meet a performance standard; and
- if the employee did not meet a required performance standard whether or not –
- the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;
- the employee was given a fair opportunity to meet the required performance standard; and
- dismissal was an appropriate sanction for not meeting the required performance standard.’
In light of the above, the onus is placed on the employer to satisfy the Commissioner, on a balance of probabilities, that the dismissal on the basis of poor work performance is fair. Moreover, In terms of Section 145 (1) of the LRA:
“A party may apply to the Labour Court on the basis of an alleged defect with a commissioner’s rulings or awards.” Accordingly, the Employer based its review that Commissioner failed to consider patent and compelling reasons why the dismissals would meet the requirements for dismissal on grounds of poor work performance. The Respondents submitted that they received no training and/or counselling on the new technology when the performance targets were set, there were various issues experienced by both clientele and the Employees when interacting and/accessing the new technology which the Employees consistently expressed the Employer.
On analysis of the aforesaid, the Court was guided by the judgment ofGold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others in respect of dismissal due to poor work performance.
The content of this judgment demonstrated that it was necessary for the employer to provide sufficient training, guidance, support, counselling to employees, as well as giving the employees a reasonable period of time to improve their performance.
In light of the above position, the Court found the Employer’s conduct to be wanting in this regard, having failed to consider the necessity of exploring alternative measures short of dismissal, such as the provision of training.
Furthermore, the Employer’s conduct portrayed an inconsistent application of discipline in relation to the Employees, in respect of poor work performance in that some Employees were not dismissed despite not meeting their targets. In conclusion, the Court held that the Employer failed to show that the dismissal of the Employees was an appropriate sanction in that reinstatement would not be unbearable and intolerable to the Employer. Accordingly, the Court agreed with the Commissioner’s order of reinstatement, which is a primary remedy in instances where dismissal is found to be substantively unfair to be the appropriate award.
This judgement highlights the numerous comprehensive protections afforded to employees in the workplace in South Africa. When an Employer embarks on dismissal action for poor work performance there are numerous hurdles an employer has to carefully consider.
Written by Ayanda Katjitae and supervised by Jasvir Sewnarain