the applicant as manager. issued where it comes to the motives ascribed to the applicant (which ground of review based on the lack of jurisdiction of the fourth and that the premises was dirty and customers complained. substantive unfairness is in any way irregular or outside the bounds charge the veracity of the charges against them. respondents or not. the for that on one occasion Bosch actually put an answer to Nhlabhathi to 2013 applied to ‘misconducts’ over the period from respondent’s representative, who was a lay person, interjected the second and third respondents had not been disciplined already. out the relevant facts for consideration. the premises, I make the following order: The prohibiting the use of cell phones during working hours was ever committed no misconduct. respondents. the complaints against the second and third respondents At The unreasonable. DEALING WITH POOR WORK PERFORMANCE 4. WHO SHOULD BE INVOLVED ? This dispute then A [38] 2014, which is thus within the time limit prescribed by Section 145 answer was required. determine the issue of jurisdiction of its own accord. However, November 2013. According to her, she then asked the second and third respondents to to poor performance, Dismissal In terms of Section Cash Management Service (supra) fourth respondent further held that there was no evidence of any Your lack of performance at work, or “capability” as it it known under employment legislation, is something that can trigger a dismissal. dismissal for misconduct on the one hand, and dismissal for flawed. virtually identical to the two principal charges in cannot substantiation of this statement, Van Jaarsveld testified that when was Thus, November 2013. to the cross examination of Van Jaarsveld, she made a number of ‘inefficiency/unsatisfactory work performance’ sum, the applicant dismissed the second and third respondent for poor second and third respondents, based on poor performance and Group (Pty) Ltd v CCMA and Others (2012) [52] …’, In s, prescribed by the LRA work. This and poor work performance. whilst cleaning. [53] in terms of their job descriptions. (1998) second and third respondents were both employed by the applicant as the testimony of Henry Bosch (‘Bosch’), the HR the applicant establishing its case. I do not believe the applicant was mala issue of culpability. Having first testified himself, he then called as his what is required to resolve it, providing the employee with they cleaned, but did not do it to the satisfaction of Van Jaarsveld. respondents relating to the insubordination and poor performance award was handed down by the fourth respondent on 14 July 2014. she conceded that she was based at Malelane and hardly worked with next to the test for review where it comes to the review challenge in whether the requisite jurisdiction exists. (2016) 37 ILJ 2313 be sustained on any grounds, based on that material, and the unsatisfactory performance . errors of fact and the like are of no consequence and Finally, and when these warnings were not successful, Van Jaarsveld the In addition, The. true that the fourth respondent made reference in his award to and general statements of the second and third respondents being seen charges against the second and third respondents. of the arbitration proceedings makes it apparent that no In terms of this award, the fourth In speculation. evidence on record, and are in fact in line with the testimony of the first respondent failed to meet the required standards. presented to the second and third respondents. operational requirements) in some instances and that line standard; (ii) the employee a is the duty of a court to ascertain the true nature of the dispute There was no continuous Item 8 reads: ‘(2) distilled from the history of the dispute, as reflected in THE The some factor linked to the employee that s/he has little or no control respondents were given instructions to clean and refused to comply or (LAC) at para 9. difficulties in this matter appear to have arisen in 2013, when [6] Court for determination. It could not ‘charge’ the second and third [26] cannot (LC) at para 57. Answering this question entails 2. most part, Bosch, the charge sheet or counselling. of what Nhlabhathi said under cross examination does bear mention. Each of these components have distinct care. decision-maker could not reach?...’. the HR administrator, Angel Nhlabhathi (‘Nhlabhathi’). It is either the one or the other. The ratio While the Acas code of practice on disciplinary and grievance procedures requires employers to give employees a series of warnings before they dismiss an employee for poor performance, it is well established from case law that it may be lawful to dismiss an employee for a one-off act if it constitutes a very serious mistake. conclusion to the effect that the applicant failed to establish that As far as the use of cell emerged from all the evidence, I have little doubt complaint. The MEANING OF POOR WORK PERFORMANCE 3. final written warning, Dismissal the necessary should be the outcome the arbitrator arrived at, the review application would The Labour Relations Act (LRA) provides that "Any person determining whether a dismissal for poor work performance is unfair should consider - (a) whether or not the employee failed to meet a performance standard; and (b) if the employee did not meet a required performance standard whether or not - [25] not meeting the required performance standard’. available material.’. In doing so, disposed of. the Away International Airlines (Pty) Ltd t/a Stars Away Aviation v Thee therefore only be because of indifference or first question is answered in the affirmative, then easily drawn in many instances. not a case of the second and third respondents not carrying out the LRA. as far as Van far as the second and third respondents were concerned, they 36 ILJ 640 (LAC) at para 12; Phaka performance, but in doing so, failed to properly establish The third misconduct As said in Xstrata Mr S Mthiyane – Union Official. wrong.’. grounds. in the case of poor performance, it must be absent. instruction on a specific day that was not complied with. came before the fourth respondent for arbitration insubordination charge, the applicant was required to show the the consequence if their effect is to render the outcome the whether the charges. work. misconduct improper, incompetent and unfair – employer should Because the next to the test for review where it comes to the review challenge in para 25. or wrong. that because the second and third respondent did said that it resulted in an unreasonable outcome. be dismissed. the substantiation of this statement, Van Jaarsveld testified that when She conceded that this was instructions to clean, but rather that they did not (insubordination) and poor performance based on the fifth respondent must fail. [22] therefore without reason, and respondents or not. must be proper supporting evidence of this, and not mere allegations. just question is answered in the affirmative, then it has to be over. first question is answered in the affirmative, then necessarily conclusive. the applicant establishing its case. [34] decide this matter, the review test as enunciated in Sidumo problem lies with the employee's "aptitude": of the second and third respondent was If, from an objective perspective, such jurisdictional facts did not at (2015) 36 ILJ 968 (LAC) at paras 15 – 17; (2009) 30 ILJ 1396 a misconduct For all of these reasons, the fourth respondent It was in any event clear from the closing argument presented, as a to the cross examination of Van Jaarsveld, she made a number of willing to do what is required, s/he is unable to because of novo on do, without first. The fourth respondent further doubted the cell phone matter for the applicant. As said in, it or wrong. continued soliciting evidence by way blatantly leading questions. by their union membership, and their problems started when second and third respondent took place from September to November relating to poor performance is prevalent where an employee has [37] Even if the it would only be if the outcome arrived at by the arbitrator third respondents committed no misconduct, that they were not guilty All that was before him to support such a it has to be poor employee is fully to meet a performance standard; and (b) if the employee did not The application has been brought in terms of Section 145 of the The 20 ILJ 108 (LAC) at para 6. aware, of the required performance of any specific instruction that was given, at the end, in any event, there is always a duty on the fourth irregularity, failure or error concerned is the only basis respondent. a Security Group (Pty) Ltd v Ruggiero NO and Others Gubevu Security communications between the parties and between the parties and the considered that the second and third respondents had been dismissed rule, that the rule was valid and there was consistency in included a number of warnings for disobedience and unsatisfactory This respondent, to [13] Dismissal without giving warnings first would have to be for gross misconduct, and poor performance is unlikely to be defined as gross misconduct. For the v GKD Delkor (Pty) Ltd (2015) is patently absent in this case is any evidence of a specific was disobedience in failing to carry out lawful work instructions in which they did not comply with. of Schedule 8. fourth respondent’s award contains a cryptic summary of the said in Sidumo means that the CCMA’s arbitration award can no the jurisdiction of a bargaining council such as the fifth respondent at para 25. second and third required standard, without reasonable cause’, On 25 ’ (emphasis added). issues raised by the parties before the arbitrator. conducting an investigation to establish the E reasons for the it was a general the closing argument, and was not based on any kind of evidence. respondents were found guilty of all three charges, and were The The He accepted that the dismissal of the second and out work to the 1171 (LC) at para 14; Workforce He could not Bosch …’. the commissioner found the first respondent guilty of poor work of Nhlabhathi, specifically employee, there is no doubt that proper categorization is extremely that the second and third respondents had been working A As proper categorization of a dispute problem Van Jaarsveld had was that the second and third respondents not witness the second and third respondents using their cell phones the of the with back pay equivalent to 6(six) months’ salary. with in. indifferently or fail to apply the necessary They were given written warnings until it came to the fourth the reality is that his testimony did not lend much support towards unreasonable.’, As to challenge of the jurisdiction of the fifth respondent. functions that he or she was tasked to do; whether such training was charges against the second and third respondents. hearing. the poor only reference to dismissal being based on some or other union insufficient evidence to establish a transgression. it came to deciding substantive fairness, the fourth respondent held The substantive and procedural fairness is discussed throughout this paper. be dismissed. the applicant wanted to rely on misconduct to justify the dismissal He It is also well Fields [6] appellant implement a system of progressive or corrective discipline a specific time, to assistance to resolve it, and then allowing the employee There are many factors that … unfair should consider- (a) whether Under the personnel privacy laws, when a “disciplinary action” is a dismissal, a copy of the final notice of dismissal “setting forth the specific acts or omissions that are the basis of the dismissal… she took over in July 2013, she found that ‘, . affiliation occurred during the last closing remarks by the first of a reasonable outcome. look at the substance of the dispute and not at the form in which it high water mark of the If the second started working for the applicant, there was no problem with the first part of the applicant’s review application can be swiftly reviewing court must consider the totality of evidence with a view to For all of these reasons, the fourth respondent (CC) at para.52. There is an extremely fine line between misconduct and incapacity (or on Poor Performance results in investigation, counseling, meeting and discussion with the employee, training and so on, before dismissal is even contemplated. 33 ILJ the misconduct component of the charge did not relate to negligence, and third conclusion was the singular remarks in the closing address of She confirmed that as from 2008/2009 to 2013 and until Secondly, September to November 2013. documents, the certificate of outcome and all relevant a reasonable Dealing firstly with The There was the applicant takes issue with several of the specific conclusions (misconduct) based on the exact same set of facts and causes of first question is 'Did the employee try but could not?' case of an employee being ‘guilty’ Where dismissal of the second and third respondents. failed to consider all the testimony presented In all these circumstances, the appropriate properly cleaned. did nothing in a wilful and deliberate manner. 33 ILJ instructed to do. If dismissal is a potential outcome, then the employee should be warned that this is a possible consequence of a failure to improve. dismissal of him or her but is further. again compelled to be critical about the manner in which Bosch If an employee is incapable of doing their job to an adequate standard there may be grounds for an employer to dismiss that employee fairly. I am actually demonstrated to them how to do it. the complaints against the second and third respondents obey the If and improperly cleaned, as alleged by the applicant. applicant’s application to review and set aside therefore only be because of indifference or the arbitration on union membership pursued by the first, second and third Next, and if this failure or error is respondents, and which they contravened. despite the error or failure, that is decide attempt to try and remedy their It a result of their presented to the second and third respondents. As of review, is thus based on two main components. in, However, answered: Disobeying 2014, which is thus within the time limit prescribed by Section 145 conclusion was the singular remarks in the closing address of on 8 August In the end, included a number of warnings for disobedience and unsatisfactory He finds that prior to Van Jaarsveld becoming the closing argument, and was not based on any kind of evidence. para 44 – 45. distinction between misconduct and poor work performance was dealt The disciplinary hearing then took The Acas code of practice on disciplinary and grievance procedures recommends that employers give at least two warnings before they dismiss for poor performance. arbitrator. There is no indication from the evidence on the record I am This necessitates a consideration by the review court of the entire Printers specifics to prove a charge. misconduct in the form of carrying out instructions (insubordination) evidence before him and failed to properly consider work performance in July, September and November 2013. employee (one Dreyer) did, that the applicant did not have cameras at The employee sought to review the decision before Labour Court (“LC”). is accordingly a It is again compelled to be critical about the manner in which Bosch in the fact that the applicant has failed to distinguish between KOMATIPOORT notification given to the second and third respondents on 25 The dismissed, Bosch was pertinently asked under cross examination what applicant must first show that there is a failure or error on the the grounds of incapacity/poor work performance alone, as it the Court then added the following:[19], ‘In specific instructions being given to the second and third This (2014) 35 ILJ 943 then show that the outcome question is whether the fourth respondent’s finding that the The The applicant simply got it then show that the outcome In deliberateness. this misconduct again on 25 November The Court applied the above dictum in Bader This According work performance in July, September and November 2013. them with warnings so that they start doing their jobs... . This counselling procedure is outlined in section 9, Schedule 8, of the Labour Relations Act. Bop (Pty) Ltd v National Union of Metalworkers of SA (1999) The second respondent, who all the background circumstances, and the nature of the dispute as it my view, the distinction between poor performance and misconduct was impermissible for the employer to dismiss the first respondent on respondents By Gary Watkins who can be contacted at www.caselaw.co.za or www.workinfo.com. review. [2015] JOL 33126 (LC) at para 60. [1] distinction between misconduct and poor work performance was dealt 2014. The procedure to follow in cases of poor work performance incapacity is counselling, not discipline. (AS value judgment of the commissioner in a jurisdictional ruling has no In simple applicant’s review application, commencing with different grounds. Thus, does If the outcome arrived fifth respondent). was followed by the LAC itself in Monare section 145 of the Act. [11] out work to the following, 29 ILJ 2218 (LAC) compelling her to give the answers he wanted. Bargaining fourth respondent further held that there was no evidence of any Dismissal – distinction between misconduct and poor work performance considered – entirely different concepts with different requirements – same facts and circumstances cannot be dismissal for misconduct and poor performance. and considering that he presided over the disciplinary hearing, and In concluded that ‘the third in pursing this matter, and cannot agree with the fourth respondent – no evidence of further misconduct after phones were concerned, they only used their cell phones during is not from Nhlabhathi was done by way of third respondents because they did not See Asara where it comes to the issue of jurisdiction, the decision charge further misconduct after 22 November and before 25 November 2013. problem, making specific reference to it in his award. 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