Umsebenzi with Teboho Mokoena

By Teboho Mokoena

On 15 August 2019, the Labour Appeal Court (LAC), delivered a judgment, which in my view, will be a useful source of reference and guidance to employees and employers alike in years to come.

The case had come before the LAC after the Commission for Conciliation Mediation and Arbitration (CCMA) and the Labour Court (LC) had ruled in favour of an employee who had been dismissed for poor work performance during their probation period.

Although it is generally accepted, narrowly so, that probation is essentially a process through which an employer determines whether or not anemployee is suitable for the position.

My view, which is supported by the LRA Code of Good Practice, is that a probation is a two-way process which affords both parties an opportunity to determine if an employee has the capacity and the capability to discharge duties assigned to them.

The ongoing performance appraisals during the probation period serve as an appropriate platform for a dialogue between parties in evaluating and assessing whether there is a job-person fit, as well as interventions that may or may not be necessary.

The Code of Good Practice provides that the duration of the probation period should be determined with reference to the nature of a particular job, as well as the generally accepted period it takes for an employee to prove whether or not they have what it takes to perform a specific role.

Regarding specific facts of the case at hand: Ubuntu Education Fund (Appellant) versus Paulsen, CCMA, Nehawu and Sonyaya (1st, 2nd, 3rd and 4th Respondents, respectively), citation: Case no: PA 12/17.

The appellant had escalated the matter to the LAC after the LC had dismissed its application to review and set aside the award of the first respondent (“the commissioner”) reinstating the fourth respondent (“Sonyaya”) in its employ. The appellant is a non-profit organisation engaged in various programmes aimed at assisting children with the long-term goal of poverty eradication.

Sonyaya was employed as a supply chain co-ordinator with effect from 18 August 2014. Sonyaya was employed subject to a six-month probationary period which was envisaged to end in February 2015.

The position involved management of the procurement function. The appellant’s offer of employment dated 4 July 2014 stated: ‘The first six (6) months of your appointment will be a probationary period. Upon the successful completion of your probationary period, you will receive confirmation of your appointment as a permanent staff. Performance appraisals will be conducted during this six-month period by your supervisor’.

Clause 1.2 of the contract of employment provided:‘The employee is appointed for a probationary period of 6 (six) months during which period the Employee will be assessed for confirmation of his suitability of employment…’

Sonyaya was initially given a task toachieve four Key Performance Areas (KPAs). However, it is common cause that Sonyaya was unable to achieve the four KPAs and therefore it was agreed to reduce his KPAs from four to one with effect from 8 October 2014 in order to allow him to concentrate on the administrative tasks of the job.

It is unclear from the court records, how many performance review sessions had been conducted before this decision was taken during the intervening period, i.e. between 18 August and 8 October 2014, but one may assume that sessions had taken place during this period which led to the decision to hire an additional temporary worker.
As stated above, the appellant then hired a temporary administrator to focus on the procurement function while Sonyaya familiarised himself with the administration systems.

This was intended to be a temporary arrangement aimed at giving him the opportunity to find his feet. Furthermore, a quality assurance manager and a financial accountant were tasked to supervise Sonyaya, as well as providing him with technical support, respectively.

Strangely, at a meeting on 5 December 2014, Sonyaya was apprised of concerns about his performance and it was agreed that the three other KPA’s would be reinstated with effect from 11 December 2014. This decision raises a pertinent question: Why did the appellant reinstate Sonyaya’s three other KPAs when it was clear that she was demonstrably incapable of achieving these?

According to the court records, the relevant part of the minutes of this meeting read: ‘It has been four months into the probation period since 18 August 2014. The six months of probation will be ending in February 2015. The job description was reduced to one KPA to assist Zandi to cope with the demands of the position. In the next two months Zandi needs to perform the work at the level that it is required. There needs to be improvement on Zandi’s performance and ability to manage the pressure that comes with the position. The position requires that Zandi performs both tasks of procuring goods and services and the administration that comes with procurement.’

A follow-up meeting was held on 16 January 2015, with the same parties in attendance as in the meeting held on 11 December 2015. Once again, similar concerns were raised about Sonyaya’s performance.

According to court records, the appellant conducted Sonyaya’s five performance appraisals between 27 January 2015 and 3 March 2015. The appraisals consisted of a comprehensive evaluation in which her performance was measured and scored against fixed criteria. Sonyaya scored 33%, 33%, 43%, 47% and 40%, respectively, in her five performance appraisals.

Performance appraisals were done in respect of every employee employed by the appellant over the same period. A comparative analysis done in March 2015 revealed that Sonyaya was on average the worst-performer in the company by a significant margin – scoring an average of 43,3%.

The appellant accordingly decided to convene a Poor Work Performance (PWP) hearing. On 6 March 2015, the appellant issued Sonyaya with a notice to attend a PWP hearing. The relevant part of the notice read thus:
‘Please be advised that you are required to attend an investigation into your work performance in your current job functions, due to the following: Your performance has been well below the required standards for tasks to be completed and for required outputs. This has been dealt with through measurement of your performance and constant coaching over the past 6.5 months since you started with Ubuntu. You are thus not reaching the required performance standards.’

Subsequent to this meeting, Sonyaya was dismissed for poor performance on 13 March 2015. Sonyaya referred an unfair dismissal dispute to the CCMA.

Critically, the appellant conceded that Sonyaya had to perform functions that had previously been separated into two posts – buyer and supply chain co-ordinator.

They also testified that subsequent to the dismissal, the appellant appointed another person as its supply chain co-ordinator. This person achieved the required performance standards within two weeks. This immediately raises pertinent a question: could it be said that Sonyaya’s skills and competency set were comparable to the person who had been hired subsequent to her dismissal? Unfortunately, this question appears not to have been dealt with.

It is also unclear, apart from the technical, supervisory support, as well as hiring a temporary worker to aid Sonyaya, whether the appellant had considered training as an intervention or an alternative placement within the establishment. Again, I have to ask: why would the appellant reinstate the three KPAs which had been previously removed from Sonyaya when it was patently clear that she was incapable of achieving these KPAs?

The CCMA commissioner held that Sonyaya’s dismissal was substantively unfair. He concluded that Sonyaya had become a permanent employee when her probation ended on 18 February 2015 and that this amounted to an indication that the appellant was satisfied with her performance and that she had satisfactorily completed her probation period. He accepted though that Sonyaya had not been able to perform her four KPAs and required assistance from the temporary worker to discharge her functions.

The commissioner erred. You cannot, as a commissioner, accept evidence that an employee on probation was failing to perform as required, but in the same breath seek refuge in the fact that the employer retained the employee within their fold beyond the probation period as an excuse to ratify their permanency.

The Labour Court refused to set aside the award on the grounds of unreasonableness. It accepted that Sonyaya was no longer a probationary employee and that the commissioner had dealt properly with the evidence.

Employers are entitled to extend, for the sake of completion, the probationary period, as was the case in this matter. It is vital that the employer needs to expressly communicate to the employee that the reason for the extension of the probation period is to solely allow parties to conclude the necessary performance reviews, and that in no way should this be misconstrued as a tacit endorsement of a permanent employment.

In this instance, the LAC held, and appropriately so, that the purpose of the probationary period was to provide the appellant time to evaluate whether Sonyaya was suitable for permanent employment. The LAC opined that while the original intent was to have completed the probation period by 18 February 2015, six months after the commencement of employment, the appellant was still engaged in an ongoing review and evaluation process.

That said, and with reference to my statement above, that, in the event that the employer anticipates that the review process may extend beyond the probation period, it is incumbent on the employer to notify the probationer that their probation would be extended for purposes of completing the ongoing review process. It shouldn’t be a matter of conjecture.

In this instance, I take up an issue with LAC when it opined that “It may reasonably be inferred from this, as well as the subsequent events, that the appellant intended to extend the probation period until the review and evaluation process was completed.

It would have been unfair under the circumstances not to have extended the probation period.

This is a critical matter which, in my view, deserves a follow-up article wherein I will highlight additional issues, which in my view, ought to have been taken into account. The LAC held, and correctly so, that the commissioner and the Labour Court erred in concluding that Sonyaya was automatically confirmed as a permanent employee simply on the basis that she remained in employment after 18 February 2015. The appeal was upheld, and the dismissal of Sonyaya was deemed to have been substantively and procedurally fair.

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