An employee who had been dismissed on grounds of poor work performance referred an unfair dismissal dispute to the National Bargaining Council for the Chemical Industry. His grounds for review of the award were vague and unsatisfactory, resulting in the review application being dismissed.

Mthimunye v Nokonkoeng NO and Another (JR2777/18) [2023] ZALCJHB 81 (24 March 2023)

Case Summary

The applicant in this case sought a review of a bargaining council arbitrator’s decision that his dismissal was substantively and procedurally fair. He had been employed as a production foreman for 25 years when he was dismissed in 2018 on the grounds of poor work performance.

In his founding affidavit, the applicant claims that the arbitrator did not allow him to state his side of the case, which goes against the natural justice principle audi alteram partum, which means to hear both sides before coming to a decision. When reading the transcript of the proceedings, however, there is no indication that the arbitrator engaged in this exclusionary and unlawful behaviour. The applicant was also assisted by a legal advisor, making it even less likely for a one-sided hearing to have occurred without any objections arising.

The applicant claimed that the arbitrator failed to apply his mind to the totality of the issue, which the Labour Court held is too vague an accusation to have merit.

He further claimed that the procedure that was followed in determining the level of his work performance was outdated, while simultaneously claiming it was not followed correctly. This, according to the Court, was clearly not the case and, in any event, the procedures are more like guidelines than rules when it comes to determining employees’ performance.

The Court found the claim that no evidence was put forth that he had been offered training or assistance in improving his performance to be untrue. The foreman who testified at the hearing gave evidence to show that he had done his best to help the applicant to address the gaps in his performance. The applicant’s duties were simplified and pared down to more manageable levels, he was offered guidance about his responsibilities, and asked to attend meetings regarding improving his work, which he failed to attend. Despite his performance declining over a number of years, and multiple attempts to discuss it and assist him in remedying it, the seasoned employee simply would not take any advice on board.

He complained that the arbitrator did not have regard to Section 186(2)(a) of the Labour Relations Act (LRA), but this section deals with unfair labour practices, which was not part of the case brought before the commissioner.

From the evidence it was clear that the applicant had been offered ample instruction, training, guidance and assistance in improving his work performance, and that he was given plenty of time to improve. He was even offered a demotion, making it clear that he could easily have been promoted again if his performance improved. He had simply rejected the demotion out of hand, and accused the arbitrator of being confused about whether the issue at hand was his work performance, or him declining a demotion. There was no evidence to indicate that the arbitrator was in any way confused on this point.

In response to the respondent’s answering affidavits, the applicant then filed a replying affidavit that was basically an attempt to lodge a brand-new case, which is inadmissible in law. Even the facts listed in this replying affidavit were querulous and unhelpful, and the style was purely argumentative.

The Court came to the conclusion that the arbitrator had clearly understood the importance of the issue to both parties, he had carefully considered the evidence, and had not come to any conclusions that any rational observer would not have come to.

The application for review of the award was dismissed with no order as to costs.

Written by Labour Guide