Court name
High Court
Case number
LCA 34 of 2008
Title

LLD Diamonds Namibia (Pty) Limited v Thobias (LCA 34 of 2008) [2009] NAHC 116 (27 February 2009);

Media neutral citation
[2009] NAHC 116
























REPORTABLE




CASE NO. LCA 34/2008








IN
THE LABOUR COURT OF NAMIBIA








In
the matter between:






lLD
DIAMONDS NAMIBIA (PTY) LIMITED APPELLANT








and








PILATUS
THOBIAS RESPONDENT











CORAM: HOFF,
J











Heard
on:
2008.11.07








Delivered
on:
2009.02.27












JUDGMENT:








HOFF,
J
: [1] This
is an appeal against a judgment by the district labour court granted
on 31 January 2008. The district labour court made the following
order:






(a) the termination
of the complainant’s services by the respondents was unlawful
and not in compliance with section 45 or 47 of the Labour Act and is
accordingly set aside;




(b) the complainant is not
to be reinstated, but the respondent is ordered to compensate him for
his loss of income and benefits for a period of six months. This
payment should be made to the representative of the complainant on or
before 29 February 2008. Interest at a rate of 20% per annum shall
be added to any outstanding amount not paid before 28 February 2008.”





[2] The
respondent was employed by the respondent as an occupational health
and safety officer on 1 September 2005. He was on probation for a
period of three months and earned a salary of N$7 800.00 per month.
In terms of an employment agreement either party may from the second
month terminate the agreement on one week’s notice in writing.
The respondent’s services were terminated on 10 October 2005.
It is common cause that appellant did not give respondent any notice.





[3] Mr
Nesongano, the general manager, of the appellant testified that,
after his appointment,the respondent was urgently required to come up
with an action plan in including evacuation procedures. He enquired
about the action plan on a weekly basis and each time respondent told
him that he would provide the action plan. When the respondent did
not provide the action plan a meeting was called, attended by
respondent as well as employees attached to the Human Resources
section, where the urgency of having an action plan was emphasized.
A deadline of one month was set for such an action plan. The
deadline was not met since the respondent called on the date of the
deadline informing appellant that he was sick. Mr Nesongano
testified that the respondent informed him that too much pressure was
being exerting on him by demanding the action plan. When respondent
again reported for work (after sick leave) he asked for an extension
of the deadline. This request was granted without specifying a
specific date when the action plan should be provided. Mr
Nesongano testified that at that stage he had informed respondent
that the action plan should be provided when respondent was ready to
submit it. The respondent provided the action plan a few days later.
Mr Nesongano testified that the action plan was
“well-written”
to such an extent that he was of the view that only a
“genius”
could have produced such an action plan. He testified that having
regard to the fact that respondent had the previous week felt sick
because of the demand for an action plan, that the present action
plan could not have emanated from the respondent. Mr Nesongano
stated that when he shared his suspicion with the respondent, the
respondent felt that he was being victimized. He then realized that
the respondent was incapable to perform the work of occupational
health and safety officer and the services of the respondent were
terminated without a disciplinary hearing. It was appellant’s
policy that the services of an employee on probation may be
terminated without a disciplinary hearing.


It
appears to me that the respondent’s services were terminated
because he did not meet the required standard. It must be stated at
this stage that poor work performance does not constitute misconduct.


Rossouw
and Conradie in A Practical Guide to Unfair Dismissal Law in South
Africa
explain this
distinction as follows on p. 48 par. 4.3.4:






As has already been
mentioned, incapacity dismissals are regarded as “no-fault”
dismissals because there is generally no intention on the part of an
employee to contravene a behavioural standard in the workplace.
Where an employee is perfectly able to perform in accordance with the
required performance standard, but fails to do so for a reason
unrelated to capacity, it may be more appropriate to treat the
incident as one of misconduct”.





[4] Probationary
employees may be dismissed for poor work performance but they are
entitled to be treated fairly by an employer and may not be dismissed
at the whim of their employer and for no valid reason.


(See
NUMSA v Tek
Corporation Ltd. & Others (1991) 12 ILJ 577 (LAC); Jonker v
Amalgamated Beverage Industries (1993) 14 ILJ 199 (IC).





[5] An
employee on probation, in terms of the common law, may be dismissed
for poor work performance at any stage during the probationary period
and an employer need not to wait until the end of the probationary
period of dismiss such an employee proved that reasonable notice has
been given to such employee.


(See
Ndamase v Fyfe –
King NO 1939 EDL 259
).





[6] Although
there are conflicting decisions for the need to hold a formal inquiry
prior to dismissal (See
Delport
v Gro-Homes Marketing CC (1992) 1 LCD 157 (IC) contra BAWU &
Others v One Rander Steak House (1988) 9 ILJ 326 I C

) courts will investigate the substantive fairness of a dismissal for
incapacity in respect of employees on probation.





[7] The
question which needed to be answered
in
casu
was whether the
respondent was dismissed for a valid reason. This in turn leads to
the question namely, on what basis did the general manager of the
appellant conclude that the action plan did not emanate from the
respondent ?


The
answer to this question, in my view, was that the conclusion reached
was based on an unsubstantiated suspicion that someone other than the
respondent had drafted the action plan.


It
was the testimony of Mr Nesongano that the only basis for him to
determine whether or not the respondent was performing would be based
on an action plan since he would then be able to
“monitor”
what the respondent was doing
vis-à-vis
the action plan.


The
action plan would provide the appellant with an opportunity to
objectively assess respondent’s performance, and to see how the
respondent would implement such plan. Instead appellant argued that
if respondent initially had difficulty in providing an action plan,
implementing such plan would have been more demanding and therefore,
respondent was incapable of performing the work of occupational
health and safety officer.





[8] The
conclusion is inescapable that the appellant anticipated what it
perceived to be an incapacity of the respondent to perform.





[9] It
was submitted on behalf of respondent on the authority of
Rossam
v Kraatz Welding Engineering (Pty) Ltd 1998NR 90

that no fair procedure was followed prior to the dismissal of the
respondent since it was common cause that no disciplinary hearing was
held.


In
Kraatz
(supra)
the court referred to the
“authoritative
work of Le Roux and Van Niekerk, The South African Law of Unfair
Dismissal where the following is stated at 222 (it should read 223):



To the extend that
there was ever doubt that a fair
hearing
was required in cases of poor work performance, this is now a well –
established proposition.” ”


(Emphasis
provided).





[10] In
my view this quotation is applicable to those employees who are not
on probation. The same authors on p. 71 – 75 deal specifically
with the position of probationary employees and at p. 72 raises the
following questions:






What has been the
subject of some debate and some conflicting decisions, however, is
the extent of the protection to be granted to probationary employees.
Are they entitled to the same standards of fair conduct as permanent
employers, or does their probationary status mean that some lesser
standard applies ? ”





[11] The
authors refer (at p. 74) to the case
Amalgated
Beverage Industries (Pty) Ltd v Jonker (1993) 14 ILJ 1232 (LAC)

where the Labour Appeal Court (per Stafford J) agreed with the
contention that the position of a probationary employee should not be
equated with an ordinary tenured employee and that an employer is
entitled to terminate a probationary employee’s employment
provided that he does not behave grossly unfairly and arbitrarily in
doing so. The court emphasised the element of fairness and stated
(at 1250 A) that
“fairness
requires that an employer act reasonably and bona fide …”





[12] The
magistrate in his reasons stated that the appellant who bore the
onus, failed to provide any minutes, assessment reports reminders, or
any document to support its contention that the respondent was
subjected to an objective performance evaluation.





[13] One
of the grounds of appeal was that the magistrate erred in this
finding and erred in finding by implication that the oral testimony
delivered on behalf of the appellant was not sufficient.


It
was testified in the district labour court that minutes had been
taken during meetings but the whereabouts of those minutes were
unknown.


As
indicated
(supra)
an employer has a duty to act fairly and may only terminate the
employment of a probationary employee for a valid reason. Thus where
there is documentary proof in existence in support of an averment
that such a valid reason existed at the time of the termination of
service such must be handed up in support of such a contention.





[14] Mr
Francis Eiseb (employed by the appellant) was called to testify on
behalf of the appellant in the district labour court. He testified
inter alia
that he was initially required to be part of a panel who interviewed
applicants for the position of health and safety officer. This was
so because of his expertise in that field. He testified that the
period within which the respondent was required to provide the action
plan was very short and that having regard to his experience he
himself would have required a month to come up with an action plan.
He testified that he was present in a meeting where respondent was
instructed by the general manager to come up with an action plan
although he was not sure of the date of such a meeting. He also
testified that in that meeting respondent was not accused of poor
work performance and that he was not aware of any other meeting in
which the respondent had been accused of poor work performance. This
is in conflict with the evidence of Mr Nesongano.





[15] I
agree with the finding of the presiding magistrate in the labour
district court that if the appellant had doubted the authenticity of
the action plan it should have held a proper enquiry. I further
agree with the magistrate that on the basis of the evidence presented
on behalf of the appellant that the determined period was
insufficient to produce the required action plan.





[16] I
am of the view that the dismissal of the respondent was substantially
unfair primarily because the general manager dismissed the respondent
on suspicion he was unable to perform and for this reason alone the
appeal should be dismissed.





[17] The
appellant (in paragraphs 7 of its notice of appeal) stated that the
magistrate erred in ordering payment of loss of income equal to a
period of 6 months taking into consideration that complainant was
still under probation when his services were terminated. Furthermore
that the magistrate erred in ordering such payment by not making
exactly clear what such amount would entail.





[18] In
terms of the employment agreement the salary of the respondent was
N$7 800.00 per month.


It
further provided that
“after
deductions the net amount will be deposited into a bank account of
the employee’s choice”.





[19] The
deductions the company would be entitled to deduct were:






  1. any
    amount the company is legally obliged to deduct;








  1. any
    amount in respect of which the employee’s written authority
    has been obtained;


  2. any
    amount that the parties have agreed pay be deducted; and







  1. should
    the employee at any time owe any amount to the company.






[20] The
appellant in my view should compensate the respondent the monthly
salary minus the deductions referred to
(supra),
multiplied by six (months).





[21] In
the result the following order is made:






The appeal against the order
made in the district labour court is dismissed.

















__________


HOFF,
J











ON
BEHALF OF THE APPELLANT: ADV. DICKS











Instructed
by: KOEP & PARTNERS











ON
BEHALF OF THE RESPONDENT: MS JANTJIES-SHAKWA








Instructed
by: SISA NAMANDJE & CO.