Presitex Enterprise (Pty) Ltd v Mahapa and Another

Case No: 
LC/REV/41/14
Media Neutral Citation: 
[2017] LSLC 5
Judgment Date: 
11 April, 2017
Judge: 
F.M KHABO

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IN THE LABOUR COURT OF LESOTHO                                                               LC/REV/41/14

 

HELD AT MASERU

 

In the matter between:

 

PRESITEX ENTERPRISE (PTY) LTD                                                              APPLICANT

and

MOOKHO MAHAPA                                                                                        1ST RESPONDENT

DIRECTORATE OF DISPUTES PREVENTION AND                                     2ND RESPONDENT

RESOLUTION

 

JUDGMENT

______________________________________________________________________

11/04/17

  • Review of an arbitral award - Dismissal of an employee for poor performance - Arbitrator relying on Section 14 of the Codes of Good Practice which require a non - performing employee to be retrained - The employer insisting, however, that the Arbitrator ignored critical evidence that the nature of the employee’s job was menial and did not require any training;

     

  • Reinstatement - When it may be ordered in terms of Section 73 (1) of the Labour Code (as amended) - Court finds it was improper for the Arbitrator to have ordered reinstatement where compensation was sought.

INTRODUCTION

  1. The 1st respondent has been in the employ of the applicant from 07TH October, 2009 to 16th October, 2013 when she was dismissed for poor work performance in that she failed to meet the expected target. She worked in various departments of the firm, starting off working in the trimming section where she cut threads. She was later transferred to quality control where she checked finished garments for defects and at the time of her dismissal she was working in the section where trouser loops are cut, a job she had been doing from 26th July, 2013 to the time of her dismissal on 16th October, 2013. She had been expected to have to produce one hundred and fifty (150) trousers in an hour.[1] She failed to meet this target and was dismissed. Subsequent to her dismissal, she instituted an unfair dismissal claim on both substantive and procedural grounds before the Directorate of Disputes Prevention and Resolution (DDPR) where she was successful and reinstatement was ordered. The learned Arbitrator found 1st respondent’s dismissal to have been procedurally flawed in that she had not been given sufficient time to learn the assigned task. She ruled further that applicant’s workplace rules provided that an employee be given at least three months within which to improve his or her performance. Dissatisfied with this decision, she approached this Court to have the said decision reviewed, corrected or set aside.

GROUNDS OF REVIEW

2. The applicant challenged the learned Arbitrator’s award on the following alleged irregularities:-

  1. That she erred on insisting on training for a job that did not require any specific skills;

     

  2. That the 1st respondent had been warned about her poor performance;

     

  3. That the policy on three months given to non performing employees applied only to probationary employees; and

     

  4. That the award of reinstatement had no basis in law as it was not sought.

The applicant contended that had the learned Arbitrator considered the evidence tendered before her she could have found in favour of the applicant.

3. It was applicant’s case that there was no need for training for the particular job that the 1st respondent was doing as it was a menial. It was contended on behalf of the applicant that the 1st respondent could not perform because of her attitude as she was not prepared to deliver to the expected standard. Counsel for the applicant submitted that it was therefore not fair for the learned Arbitrator to have insisted on training. 1st respondent’s reaction to the review application was that it was an appeal disguised as a review because the applicant was challenging the correctness of the decision. The applicant denied this and argued that it was challenging factors that led to the decision and not the decision itself.

THE COURT’S ANALYSIS

4. As it has already been alluded to, it was common cause that the 1st respondent worked in the loops section of the firm from 26th July, 2013 to 16th October, 2013 when she was dismissed for poor work performance. This is a section where trousers’ loops are cut. She did not dispute during arbitration proceedings that she failed to reach the set target but argued that she was new to this section and had not received any form of training nor given sufficient time to learn the job. She intimated before the DDPR that she was told to learn from fellow employees. As aforesaid, the applicant argued, on the other hand, that the 1st respondent intentionally refused to meet the required target. Mr. Sekhabisa, 1st respondent’s supervisor, averred that they tried to persuade the 1st respondent on about four occasions to improve but to no avail.

5. The learned Arbitrator heavily relied in her motivation for her award on Section 13 of the Labour Code (Codes of Good Practice) Notice, 2003. It reads:-

13. (1)    Any person who determines whether a dismissal for poor work performance is fair should consider -

  1. whether or not the employee failed to meet a performance standard;

     

  2. whether the employee was aware, or could reasonably be expected to have been aware, of the required performance standard;

     

  3. whether the performance standards are reasonable;

     

  4. the reasons why the employee failed to meet the standard; [and]

     

  5. whether the employee was afforded a fair opportunity to meet the performance standard.

     

6. The learned Arbitrator concluded from the evidence tendered that the 1st respondent knew the performance standard and acceded that she failed to meet it, but she was not given an opportunity to improve and that she found it absurd that she had been given a warning the first day she started working in the particular section. On procedure, she alluded to Section 14 of the above Codes which provides that for a fair procedure:-

14. (1) The employer must give appropriate guidance, instruction or training, if necessary, to an employee before dismissing the employee for poor work performance. What is appropriate will depend on the circumstances of each case. For example, a highly skilled employee may not require retraining;

      (2)  The employee must be given a reasonable time to improve. What is reasonable will depend on the nature of the job, the extent of the poor performance, status of the employee, length of service, the employee’s past performance record, etc;

     (3)    If the employee continues to perform unsatisfactorily, the employer must warn the employee that he or she may be dismissed if there is no improvement…

The learned Arbitrator in her evaluation of the evidence tendered found that the 1st respondent was not retrained when poor performance continued. Her evidence was that she had just been given a scissor and asked to learn from her co - employees. According to Mr. Sekhabisa’s (RW 1) evidence, he demonstrated to the 1st respondent what she should do.

7. On the duration of training, Mr. Sekhabisa conceded in cross - examination that it was company policy to give employees three months to learn the work assigned to them,[2] but when the 1st respondent was dismissed the three months had not lapsed. One of applicant’s grounds for review was that the three months regarding training only applied to probationary employees. This point, however, appears for the first time on review as it is not reflected in the record. In cross - examination[3] the 1st respondent’s union representative, Mr. Sam Mokhele asked:

Sam: Did you give her time to learn and do the work?

Sekhabisa: yes

Sam: How long did you give her?

Sekhabisa: l gave her three months

Sam: Is a period of three months optional or legal?

Sekhabisa: It is according to the company’s practice

Sam: Where is that policy that gives employees three months?

Sekhabisa: At the Company

Nowhere did applicant’s witness indicate that the three months only applied to probationary employees.

8. It was 1st respondent’s Counsel’s argument that by failing to give the 1st respondent the three months to improve her performance, the applicant breached its own internal rules. In our view, since 1st respondent’s defence for non - performance impinged on training, it was appropriate for the learned Arbitrator to consider policies and laws relating to training. Applicant’s ground for review was, inter alia, that the 1st respondent performed a menial job that did not require training, but it failed to show that their policy drew a distinction between jobs that needed training and those that did not require it. The applicant cannot be allowed to breach a policy that it had set for itself.

WHETHER THE MATTER IS REVIEWABLE

9. Reacting to the review application, 1st respondent’s Counsel submitted that this was an appeal disguised as a review. He contended that the applicant was not challenging a procedural irregularity on the part of the learned Arbitrator but the correctness of the decision. According to him, applicants were just not happy with the learned Arbitrator’s award. He therefore prayed that the review application be dismissed.         

10. The test for review has been a subject of a number of judgments, in particular the seminal judgment of Sidumo and Another v Rustenburg Platinum Mines and Others (Sidumo)[4] in which the Constitutional Court of South Africa held that in determining whether a matter is reviewable or not the question is whether the decision reached is one that a reasonable decision - maker could not reach. Applying this test to the case before us, the main issue is whether the outcome reached by the learned Arbitrator was one that could have reasonably been reached on the evidence and other material that were before her. We are of the view that the award made by the learned Arbitrator is within the band of decisions that a reasonable decision maker could make within the facts that were available to him or her. We therefore find the matter not reviewable.

WHETHER IT WAS PROPER FOR THE ARBITRATOR TO ORDER REINSTATEMENT IN CIRCUMSTANCES WHERE IT WAS NOT SOUGHT

11. Having found the dismissal to have been procedurally unfair, the learned Arbitrator ordered that the 1st respondent be reinstated to her job. The applicant challenged this decision on the basis that it was not a relief that the 1st respondent had sought as she had prayed for compensation.1st respondent’s Counsel argued, on the contrary, that even if the 1st respondent had not sought reinstatement, it was a discretionary relief and as far as he was concerned, the learned Arbitrator exercised her discretion to award it. The issue then becomes whether it was proper for the learned Arbitrator to have granted reinstatement where it was not sought.

12. Remedies for unfair dismissal are regulated by Section 73 of the Labour Code Order 1992 (as amended in 2000).[5]The said Section provides that:-

73   (1)   If the Labour Court or arbitrator holds the dismissal to be unfair, it shall, if  the employee so wishes, order the reinstatement of the employee in his or her job without loss of remuneration, seniority or other entitlements or benefits which the employee would have received had there been no dismissal. The Court or arbitrator shall not make such an order if it considers reinstatement of the employee to be impracticable in light of the circumstances;

(2) If the Court or arbitrator decides that it is impracticable in light of the circumstances for the employer to reinstate the employee in employment, or if the employee does not wish reinstatement, the Court or arbitrator shall fix an amount of compensation to be awarded to the employee in lieu of reinstatement…

13. In terms of subsection (1) above, if the Labour Court or the DDPR finds the dismissal to have been unfair, it is obliged to order reinstatement. There are two exceptions to this namely:-

           a)  If it is impracticable in light of the circumstances for the employer to reinstate the employee in employment, or

           b) or if the employee does not wish reinstatement.

    This was confirmed by the Labour Appeal Court in Lekhooa Pitso v Standard Lesotho Bank and Another. [6]

In this case the 1st respondent sought compensation and as such did not wish to be reinstated. It was therefore irregular for the learned Arbitrator to have ordered reinstatement in the circumstances.

DETERMINATION

  1. < >

    It, however, finds reinstatement not to have been an appropriate

                remedy as it was never sought by the 1st respondent and therefore

    substitutes the order of reinstatement with an order for compensation;

     

  2. The matter is remitted to the DDPR for a proper assessment of

               compensation due to the 1st respondent; and

     

  3. There is no order as to costs.

     

THUS DONE AND DATED AT MASERU THIS 11TH DAY OF APRIL, 2017.

 

 

     F.M. KHABO

PRESIDENT OF THE LABOUR COURT

 

 

L. MATELA                                                                                                       I CONCUR

ASSESSOR

 

R. MOTHEPU                                                                                                   I CONCUR

ASSESSOR

 

For the applicant          :  Adv., K.P. Letsie  -   Lesotho Private Sector Employers’  Association

For the 1st respondent : Adv., P.J. Lebakeng - Phoofolo Chambers

 

 

ANNOTATIONS

STATUTES

Labour Code Order 1992 (as amended in 2000)

Labour Code (Codes of Good Practice) Notice, 2003

CITED CASES

Sidumo and Another v Rustenburg Platinum Mines and Others (Sidumo) (2007) 28 ILJ 2045; [2007] 12 BLLR 1097; 2008(2) SA 24; 2008 (2) BCLR 158 (CC)

Lekhooa Pitso v Standard Lesotho Bank and Another LAC/CIV/09/2008 at pp. 7- 8

 

 

[1] Evidence in chief of Mr. Sekhabisa, 1st respondent’s supervisor p. 4 of the record

[2] P. 11 of the record of proceedings

[3] P.11 of the record

[4] (2007) 28 ILJ 2045; [2007] 12 BLLR 1097; 2008 (2) SA 24; 2008 (2) BCLR 158 (CC)

[5] Labour Code (Amendment) Act, 2000

[6] LAC/CIV/09/2008 at pp. 7-8