Very often the losing party at an arbitration feels that the award is not a fair award and that justice has not prevailed. The losing party is however not without a remedy. That remedy takes the form of instituting review proceedings in the Labour Court.
If you have not yet read my article “So you’ve lost at the CCMA – what can you do about an unsatisfactory arbitration award? ” it is a quick and easy read and will provide you with some background about a review application, and what is required for a review application to be successful (click on this link to read the article).
A successful review means that the Labour Court could set aside or overturn the arbitration award and even substitute/replace the findings of the arbitrator if it can be demonstrated to the Court that there was an irregularity in the arbitration proceedings or in the arbitration award itself, and which irregularity reveals that the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner, or arrived at an unreasonable result.
A recent case concerning poor work performance in regard to an employee who was on probation was recently under the spotlight.
The facts of the case were that the employee was subject to a 6-month probationary period and that she had failed to perform satisfactorily. The employee was provided with supervision and technical support and was continually advised of her shortcomings and given assistance and guidance. The employer conducted 5 performance appraisals over a 5 week period and the employee scored unsatisfactorily in each one.
A formal hearing into the employee’s poor work performance was conducted about 2 weeks after the expiry of the probation period, and the employee was dismissed for poor work performance.
Despite the evidence that was presented at the arbitration, the arbitrator found that the employee had become a permanent employee when her probation ended; that the employee had satisfactorily completed her probation period, and that her dismissal for poor work performance was thus unfair.
The employer took the matter on review to the Labour Court, but the Labour Court found the award to be in order, and so the employer appealed to the Labour Appeal Court ( LAC).
The LAC found that it could reasonably be inferred that the employer intended to extend the probation period until the performance process had been completed and that the probation period had thus been extended.
The court further found that considering the ongoing efforts by the employer and the obvious problems that the employee had, that it was not open to the arbitrator to have found that the employer had impliedly confirmed the employee as a permanent employee. Furthermore, the commissioner’s finding that because the employee continued in employment after the end of the probation period that this therefore meant that the employee’s performance was satisfactory was irrational, and it ignored undisputed evidence to the effect that she was in fact not performing satisfactorily.
The LAC concluded that the commissioner had misconceived the nature of the enquiry and had arrived at an unreasonable result, and the LAC, therefore, substituted the finding contained in the arbitration award to rather read that the employee’s dismissal was fair.
Apart from the fact that the review was successful, another interesting issue that came out of the judgment of the LAC was in relation to the issue of poor performance during probation.
The court found that item 8(1)(j) of the Code of Good Practice: Dismissal, permitted a lower standard when an employer wished to dismiss employees who were still in their probation period on grounds of poor work performance and that arbitrators should thus not be so quick to interfere with employer’s decisions where probationary employees have not attained the required performance standard expected by the employer whilst the employee is still in the probation period.
From the above case, it is clear that review applications can succeed but that they are not just easily achieved. The employer in this case failed in its review application at the Labour Court but eventually succeeded at the Labour Appeal Court.
Review applications can successfully be instituted with the correct expert legal advice.
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