RASELEBOGO v CASH BAZAAR (PTY) LTD 2006 (1) BLR 550 (IC)
Citation: 2006 (1) BLR 550 (IC)
Court: Industrial Court, Gaborone
Case No: IC No 85 of 2005
Judge: Legwaila JP
Judgement Date: 0000-00-00
Counsel: Applicant in person. O Mosipuri for the respondent.
Flynote
Employment - Dismissal - For incapacity - If employee failing to meet standards set, employer to
discuss issue with employee, attempt to find ways to remedy poor performance and try to find
alternatives to prevent dismissal - Only after taking all reasonable steps to assist employee have
proved fruitless, may employee be dismissed.
Headnote
The applicant was employed as a sales assistant by the respondent. Following a
pattern of shortages and surpluses, the applicant's employment was terminated,
allegedly for poor performance. The respondent's rule was that a shortage or surplus
should never exceed P2 and that the periods of no shortages or surpluses had no
mitigatory effect in considering the performance of the employee.
Held: (1) While the law gave the employer the latitude to run his business as he saw fit
including setting the standards and making assessments of performance, it was
required that the standards set and the assessments made not be grossly
unreasonable. Should a court determine that a standard set was grossly unreasonable,
it would not hesitate to intervene.
(2) In the event of failure to attain the standards set, the authorities require that the
employer discuss the issue with the employee and must, where possible, try to find
alternatives to prevent dismissal. As part of the assessment of the performance of the
employee, attempts must have been made to find ways of remedying poor
performance. The employee must be made aware that the consequence of failure was
dismissal. Only after taking all reasonable steps to assist the employee have proved
fruitless, may the employee be dismissed.
(3) The setting of standards was not entirely a subjective matter. An element of
objectivity had to be present and the standards set should be reasonable and
achievable.
(4) Incapacity per se was not misconduct. Incapacity involved behaviour or conduct that
was not intentional or negligent. It was a lack of skill and therefore a no fault failure. It
was a failure to satisfy the terms of employment but for reasons beyond the employee's
control.
(5) It was clear that the employee's clean record for three years was not taken into
account as mitigating the applicant's failures. The employer ha d been angered by the
failure of the applicant rather than approaching the case as one of incapacity. The
employer's decision had not been based on a proper assessment of the applicant's
problems. The applicant was accordingly entitled to compensation for wrongful
disciplinary action.
Case Information
Cases referred to:
Ally and Others NNO v Courtesy Wholesalers (Pty) Ltd 1996 (3) SA 134 (N)
Apps v Dallas (Pty) Ltd t/a Diggers Pub & Grill [2002] 2 B.L.R. 174, IC
Brereton v Bateman Industrial Corporation Ltd and Others (2000) 21 ILJ 442 (IC)
Empangeni Transport (Pty) Ltd v Zulu (1992) 13 ILJ 352 (LAC)
Gostelow v Datakor Holdings (Pty) Ltd t/a Corporate Copilith (1993) 14 ILJ 171 (IC)
Letsema v Pep Botswana Holdings Ltd t/a Pep Stores (IC 226/2000), unreported
Old Mutual Group Schemes v Dreyer and Another (1999) 20 ILJ 2030 (LAC)
SA Commercial Catering & Allied Workers' Union v Pep Stores (1998) 19 ILJ 939
(CCMA)
Venter v Renown Food Products (1989) 10 ILJ 320 (IC)
Claim for compensation for unfair dismissal. The facts are sufficiently stated in the
judgment.
Applicant in person.
O Mosipuri for the respondent.
Judgement
LEGWAILA J:
The applicant, Masego Raselebogo, was employed by the respondent,
Cash Bazaar (Pty) Ltd, as a sales assistant. She worked for the respondent from 1
August 2001 to 21 July 2004 when her employment was terminated allegedly for poor
performance.
The applicant is alleged to have had a problem of shortages and overages as follows (a) 28 February 2004
=.95
s
h
o
r
t
a
g
e
(b)
4 March 2004
=.29
s
h
o
r
t
a
g
e
(c)
20 March 2004
=.06
s
h
o
r
t
a
g
e
(d)
26 March 2004
=.05
s
u
r
p
l
u
s
(e)
26 June 2004
=.04
s
u
r
p
l
u
s
According to the record of appeal the applicant was allegedly counselled on 28
February 2004, given a first warning on 4 March 2004, given a severe warning on 20
March 2004, Final Written Warning on 26 March 2004 and finally called for a hearing on
26 June 2004, which led to her dismissal. The respondent's rule is that shortage or
surplus should never exceed P2 and that the periods of no shortages or surpluses do
not necessarily enure to the advantage of the employee in the sense that they have no
mitigatory effect.
The applicant did not deny that she had shortages and surpluses. She came out with
rather sad explanations as follows:
(a)
that she had secured a loan of P2,700 from her employer which was
being repaid at P318 pm. Out of her wages of P770, she regarded the repayments as
onerous especially taking into account that she was also paying P250 per month for
rent and P40 per month for transport. These amounts made her monthly mandatory
payments total P608 leaving only P168. Therefore she could not cope on her wages;
(b)
that she had a health problem;
(c)
that the work environment was unfriendly:
(i)
some members of staff taunted her;
(ii)
her immediate supervisor was hostile and aggressive towards her;
she made her work more than others.
In raising these problems the applicant asserted that her performance was negatively
affected by her lack of peace of mind because of the stated problems. The applicant
also said she was not 'advised on how to avoid shortages' and that 'there was no
training'.
The applicant was asked why she did not discuss her problems with her employer. Her
answer was:
'Since I was not properly treated, the environment suggested that it would not have helped even if
I reported.'
She however confided in one senior person who did not help. Under cross-examination
she was asked why she did not explain her problems at the first disciplinary hearing of 6
July 2004. Her reply was:
'I did not reveal my problems because I was not free to talk. I did not tell the manager that I was
not in a position to talk.'
It is the applicant's contention that she should not have been dismissed. She could not
quite articulate the basis of her claim. But she believes she is entitled to six months'
compensation.
The law
The case of Brereton v Bateman Industrial Corporation Ltd and Others (2000) 21 ILJ
442 (IL) pp 444-5 laid down the following principles on the standards of performance:
'First, an employer is entitled to set his own standards as to the performance required of his
employees and the court will only interfere where such standards are grossly inappropriate.
(Empangeni Transport (Pty) Ltd v Zulu (1992) 13 ILJ 352 (LAC) and Eskom v Mokoena [1997] 8 BLLR
965 (LAC) at 979....)
Secondly, it is for the employer to determine whether or not the required standard has been met,
and the court will interfere only if the performance assessment made by the employer is grossly
unreasonable.... The further comment may be added that it is also within the employer's province to
make the assessment whether or not those standards have been met and again the court will not
interfere, unless the assessment is grossly unreasonable.'
It will be noted that while the law gives the employer the latitude to run his business as
he sees fit including setting standards there is a requirement that the standards set not
be grossly unreasonable. Should the court determine that the standard set is grossly
unreasonable, it will not hesitate to intervene. Be that as it may, the law as explained
sets the general approach by the courts.
Specifically on poor performance the case of Venter v Renown Food Products (1989)
10 ILJ 320 (IC) at p 321 explains:
'It was decided in the Erasmus case that the employer must discuss the issue with the employee and
that the employer must, where possible, try to find alternatives to prevent the dismissal. If he has taken
reasonable steps and no solution can be found he may then dismiss the employee, (Senior Manager).
In view of these decisions, it is certain that in the case of a less senior employee it is even more
important for the employer to ensure that the employee is fully aware of what is expected from him
and in what way his performance is lacking and in what way it can be remedied (for instance, by
finding alternatives to prevent the dismissal). The prudent employer will take all reasonable steps to
prevent dismissal before dismissing the employee. In Rossouw v Mediese Navorsingsraad (2) (1987)
8 ILJ 660 at 664B-G the court held that the employer must give notice to the senior manager of the
alleged deficiency and that he must lend a helping hand with the correction thereof. At 665G it was
also decided that the incompetence must be of such a serious nature that it must justify dismissal.
Mitigating circumstances must also be taken into account (at 664E).'
The case of Gostelow v Datakor Holdings (Pty) Ltd t/a Corporate Copilith (1993) 14 ILJ
171 (IC) at p 175 decided:
'The employer would, during a careful appraisal of the employee's performance, discuss his
criticism with the employee, warn him of the consequences of there being no improvement and give a
reasonable opportunity to improve. Such an appraisal would or at least should show whether the
employee's performance can be improved by advice, guidance and additional training. It may also
highlight weaknesses in the support management has provided.'
These cases make clear that barring 'grossly inappropriate standards' it is within the
province of the employer to set standards, and to determine whether the standards are
being met. In the event of failure to attain the standards set, the authorities cited require
that the employer discuss the issue with the employee and must, where possible, 'try to
find alternatives to prevent dismissal' (Venter (supra)). As part of assessment of the
performance of the employee attempts have to be made to find ways of remedying the
poor performance. The employee must be made aware that the consequence of failure
is dismissal. Only after taking all reasonable steps to assist the employee have proved
fruitless, may the employee be dismissed.
There is yet another aspect of failure to attain set standards that many employers fail to
appreciate. Incapacity per se is not a misconduct. J Grogan in Workplace Law (7th ed)
at p 187 makes the following distinction:
'Poor work performance that arises from misconduct or wilful negligence and poor performance
caused by circumstances beyond the employee's control may be treated differently. The former is a
disciplinary issue, the latter requires different and more sympathetic treatment.'
Grogan uses much stronger language in Dismissal, Discrimination & Unfair Labour
Practices (2004) on the same point at p 196:
'In summary then, incapacity in its broadest sense exists when employees are unable to perform
their work to a standard set by the employer, whether such incapacity arises from lack of skill or from
physical or mental ability. Because in these forms of dismissal the employee is not at fault, it would be
entirely inapposite to treat the incapacity as misconduct. Employees cannot be disciplined for acts or
omissions for which they are not to blame. However, as pointed out above, in the employment context
the obligations of employees are contractual. Inability to perform remains a ground for termination of
contract.' (My emphasis.)
It is because incapacity or failure to meet targets, unaccompanied by negligence, is not
a misconduct that the employer is required to assist the employee before resorting to
dismissal. Le Roux and Van Niekerk in The South African Law of Unfair Dismissal
(1994) make the following distinctions at 219:
'Incapacity is distinguished from misconduct by the requirement that, in the latter case, some
notion of culpability on the part of the employee be established. Incapacity dismissals involve
behaviour or conduct which is not intentional or which is not negligent. In this sense they are "no fault"
dismissals.'
The authorities cited emphasise the point that the standard set should not be grossly
inappropriate. In other words the setting of standards is not entirely a subjective matter.
An element of objectivity must be present. The standards should be reasonable and
achievable. In the case of Gostelow (supra) at p 176 the court explained:
'The respondent submitted that failure is proof of his incompetence. I do not agree with that
submission. Failure to reach the goals would show incompetence only if goals set were reasonable
goals taking into consideration the volume of work required of him; the circumstances under which he
had to perform his work and the quantity and quality of support and infrastructure available to him. His
mere failure therefore begs the question.'
In the case of Apps v Dallas (Pty) Ltd t/a Diggers Pub & Grill [2002] 2 B.L.R. 174, IC I
made the following comment at p 184D on failure to achieve targets:
'That the applicant failed to achieve certain targets set by the employer is not in dispute. The
applicant himself conceded the failure. But he went further to contend that the target set was not
achievable. It was for the respondent to demonstrate by evidence that the target set was achievable.'
(My emphasis)
Similarly, in this case it was for the respondent to demonstrate that the standard set was
achievable and therefore not grossly inappropriate. The respondent's input in that
respect was sadly lacking for reasons that I shall deal with later. On the other hand the
applicant pleaded that she was overwhelmed by being required 'to do everything in the
store'.
I now turn to the application of these authorities (court decisions) to the facts of this
case. As pointed out earlier the respondent was emphatic that the ruling at the
applicant's workplace was that shortages or surpluses should not exceed P2. The
applicant's shortages or surpluses exceeded that set standard. The respondent's
attitude was simply that the standard set had to be met. Deon Conradie, general
manager operations for the respondent wrote in response to the applicant's statement of
case:
'1.
The respondent feels that the applicant was fairly dismissed and was given
sufficient time and assistance to improve her performance. See TLM 1.
2.
As a shop assistant, her duties include serving customers on the P.O.S. If she
cannot perform this duty on the desired level she is in breach of her contract.
3.
The applicant had several opportunities to discuss the problem with management
but failed to do so.
4.
The case in front of us is simple. Did she contravene any policy, and if so did the
company provide assistance? The answer on both is yes.
(i)
The company did prove that several corrective actions were taken from
counselling to final warning.
(ii)
The company norm is P2 short or over. The applicant was grossly short
or over.'
The respondent was unfortunately represented in court by persons who had no clue as
to what was required of them in court. It is unfortunate that an entity the size of Cash
Bazaar did not find it prudent to send an officer with some forensic experience or better
still, a legal practitioner.
There were a lot of questions which an experienced officer would have answered better
than the robotic answers we were subjected to. For example, an important issue of what
form counselling took revealed that the respondent's representative did not know the
difference between warning and assisting an employee. This is such a crucial point that
the success of a case of poor performance will depend on how it is answered. Similarly
on the P2 norm, the question whether the standard set was reasonable produced the
somewhat 'programmed' answer that, 'for the respondent P2 is the norm', time and
again that it became clear that the representatives did not appreciate the import of that
question. But even after explaining the purpose of the question the chorus did not
change. Litigants have to know that the quality of representation in court has a direct
bearing on the chances of success, subject of course to the facts of the particular case.
An informed representative will know what evidence is required to support his client's
case, and will make that evidence available through witnesses with first hand
knowledge of the facts as opposed to hearsay. It is not enough to say an employee was
assisted when there is no witness who either assisted the employee or was there when
the employee was assisted, and can say how it was done.
Turning now to Mr Conradie's statement, it is essential to deal with it step by step. The
first point is that the applicant 'was given sufficient time and assistance to improve her
performance.'
The witness for the respondent, Mr Lekgotla Kedimotse failed dismally to tender any
evidence proving 'assistance to improve'. He spoke of assisting the applicant to appeal
after dismissal. When the court tried to guide him as to what evidence was required, all
he could say was that, the applicant was given time to prepare for the hearing, was told
of her right to be represented at the disciplinary hearing, the right to interpretation,
and was informed of the date of hearing. While these were necessary steps to prepare
for a hearing, that is not what 'assisting the employee to improve, or counselling' is
about. These are steps aimed at averting dismissal.
The authorities cited speak of the need for the employer to:
'discuss the issue with the employee, advise, and appraise, and that the employer must, where
possible, try to find alternatives to prevent dismissal',
and that:
'the employer to ensure that the employee is fully aware of what is expected of him and in what
way his performance is lacking and in what way it can be remedied',
and
'... must give a helping hand with the correction thereof.' (Venter (supra) at p 321). (My emphasis)
Only specific evidence by those involved in the process or at least a record of what was
done would have been of assistance to the court. The fact that Mr Conradie stated it in
his letter did not amount to evidence. In any case the details were not there.
As already pointed out the question of what steps were taken to assist an employee is
usually proved by presentation of records of such assistance. In this case what we have
is copy of a single questionnaire dated 4 March 2004 followed by copy of a letter of
warning dated 4 March 2004. The letter is titled - 'Letter of Warning' and reads:
'This is a warning issued in terms of section 25 of employee Handbook in that on 28/02/04 [sic] you
had a shortage of P13.29 after you had a shortage P99.95 two days before and a shortage of this
amount P13.29. Section 24.2E and F [sic]. You are advised to read these sections of company
employee handbook.
You are hereby warned that any repetition of this offence or any other contravention of laid down
regulations could lead to more serious consequences.'
She was not even assisted by taking her through the handbook to explain the sections
referred to but was told to find out on her own.
The respondent's representative submitted this letter as evidence of
'assistance/counselling or lending a helping hand'. Far from that being so, it was a
classic example of intimidation. As for the questionnaire see my comments at p 559C.
The poor employee needed to be helped and not frightened. When the cases refer to
informing the employee of the consequences of failure to achieve the target as part of
assisting, they mean conveying advisory information and not issuing threats. Clearly the
employer's reference to 'this offence' when no wilful dereliction of duty was proved led
to the mis-characterisation of the act. This was not a disciplinary matter in the sense of
wilful misconduct but a question of incapacity which 'requires a different and more
sympathetic treatment'. (J Grogan Workplace Law at p 87.)
'The employer must after all, create the conditions which enable the employee to carry out his duties
satisfactorily.' (Gostelow (supra) at p 175.)
All these stem from the premise that incapacity involves behaviour or conduct which is
not intentional or which is not negligent. No notion of culpability on the part of the
employee is present. It is lack of skill and therefore a no fault failure. This is not to say
an employer may not dismiss an employee for such failure. The point being made is
that the approach must be different from the approach to a case of culpable conduct. All
the prerequisite efforts to assist an employee failing because of lack of skill must be
satisfied.
Another letter dated 22 March 2004 titled 'Severe Warning' was written to the applicant
after a shortage of P10.05 and the applicant was reminded:
'Our HandBook on Section 24.2 it says continuous and repeated poor performance at work this
will lead to company loss of property. You are charged on these section [sic].'
The letter ends with the usual threat that 'any repetition of this offence or any other
contravention of laid down regulations will lead to more serious consequences'. The
same warning was repeated in a letter of 29 March 2004 after a surplus of P10.05.
On 26 June 2004 the applicant had another surplus of P20.04. This led to an invitation
to a hearing which took place on 6 July 2004 and ended with the applicant's dismissal.
At the hearing the applicant explained:
'If my duty was only to cash I could have managed to control my work. But since I am doing
everything in the store that is why I am failing.'
The chairman's response was:
'1.
The employee as per record brought as evidence cannot improve since she has
counselling and warnings but she still continues with bad performance.
2.
She shows no sign of improvement as an employee.'
I am beginning to wonder whether there was not more to this case than was revealed.
An employee accused of poor performance pleads that she is incapable of handling the
amount of work. Instead of her employers looking into what she meant by 'doing
everything in the store' the plea is dismissed off-handedly. The cases cited suggest
'finding alternatives to prevent dismissal' (Venter (supra) at p 321). Even the
respondent's handbook provides for alternatives to dismissal such 'reduction in salary'
and 'demotion'. (Clause 33 of the Handbook).
In consequence of all letters threatening the applicant and the total absence of evidence
pointing to 'counselling, guidance, assessment or assistance' either from the record or
from witnesses in court, the court is unable to accept Mr Conradie's statement that the
applicant was 'given sufficient time and assistance to improve performance'. The only
thing the applicant was given was time to consider the threat of dismissal.
Breach of contract
The applicant's failure to perform for reasons of incapacity or lack of skill should not be
treated as performing 'in the wrong manner' or what is termed 'positive
malperformance'. (See Ally and Others NNO v Courtesy Wholesalers (Pty) Ltd 1996 (3)
SA 134 (N) at p 150.) It is simply a case of failure to achieve the standard set because
of lack of skill which is a no fault failure.
It is failure to satisfy the terms of employment but for reasons beyond the employee's
control.
Failure to discuss the problem
The authorities cited leave no doubt that in the case of failure to perform to the
employer's satisfaction, especially because of lack of skill or capacity, it is the employer
who has to initiate dialogue. He must discuss the issue with the employee. (Venter
(supra) op cit). From the record, rather than being given the opportunity to discuss, the
applicant was subjected to threats. If the opportunity refers to the hearing of 6 July
2004, the applicant confessed her inability to cope. She was not able to do everything in
the store and still work efficiently as a cashier.
In explaining the shortage of P99.95 on 4 March 2004 the applicant had revealed the
following in a questionnaire given to her.
'Problem:
Reason:
1.
2.
1.
2.
Solution:
1.
2.
Upset minded while cashing.
Short tempered.
Have to support her two kids but the salary too low, everything
is expensive i.e. food, transport, rent and clothing. Also
deduction of loan causes the shortage.
Some of the customers are always in a hurry shouting to the
cashier, may, [sic] thus when she give more change.
I could have come to the manager to tell or explain my problem
so that she could have helped with some ideas.
Been undermined by one of the colleagues which causes stress
during the course of the day.'
The reaction of her superiors was:
'Action:
1.
2.
You will stop credit in the company until you clear your loan
deductions.
You always inform the supervisor about the problem if any.'
Clearly this was inadequate. Nothing is said about how to deal with shouting customers
and more importantly, the bullying colleague. When you take the letter of 9 July 2004
and the explanation of 4 March 2004 and the apology of June 2004, it is a
misrepresentation of the facts to say that the applicant failed to discuss the problem. On
the other hand, her employers miserably failed to appreciate the extent of her problem.
On appeal to the general manager on 9 July 2004 she was even more frank.
'But the cause of this hearing was not due to the fact that I had carelessness and negligence on
my work as it had been stated. The fact is, I have social problems like being a breadwinner, having
some siblings, and I am not living a positive life as well. Even at work they used to treat me badly.'
This was clearly a plea for help, couched in submissive terms. What did she get in
return? An inquisitorial hearing on appeal on 21 July 2004. Totally unsympathetic to all
the information she had given - which she repeated. She was found guilty.
'Reasons: Failure to explain clearly to the prosecutor (who was chairman at your hearing on the
06th-July 2004) as to how you came to shortages and surpluses
-
changing and giving misleading statements
failure to exercise responsibility of seeking for assistance and
that behaviour leading to company loss
failure to perform satisfactorily and non-performance.'
After that the so-called prosecutor rubbed it in with 'aggravating circumstances' which
included misrepresentations such as her being not trustworthy. Clearly Mr Kedimotse
who was chairman at the first hearing should not have been turned into a prosecutor
whose aim was clearly to ensure that his decision at the lower level was not overturned.
It is not far fetched to suggest that he was offended by an appeal against his decision.
How could it be said that the applicant's statements were misleading when:
(1)
On 4 March 2004 in explaining the surplus of P99.95 she disclosed her
personal problems?
(2)
On 28 June 2004 she apologised for her mistake?
(3)
On 9 July 2004 she again explained her personal problems as were
mentioned on 4 March 2004 after explaining that her problem was not carelessness or
negligence?
(4)
On 21 July 2004 she repeated the loan problem first revealed on 4 March
2004, repeated staff problems or bullying first revealed on 4 March 2004 and repeated
on 9 July 2004? There were only two new facts, her illness and problems specifically
with the manager.
I need to repeat the employer's legal obligations in cases of this nature 'An employer is obliged to make an assessment (appraisal) when the reason for dismissal is
substandard performance due to lack of skill in the broader sense. A value judgment regarding
unacceptable performance must be objective and reasonable to be valid. It would, where there is no
assessment, be neither. The assessment would be incomplete if no attempt was made to establish
the reason for the employee's shortcomings and, save where the incompetence is irremediable, an
attempt was made to assist the employee overcome his shortcomings by advice and guidance.'
(Gostelow (supra) at p 174; Old Mutual Group Schemes v Dreyer and Another (1999) 20 ILJ 2030
LAC at p 2035.)
Another area of misrepresentation is the allegation that the applicant did not improve.
According to the record the shortage for 28 February 2004 was P99.95. That drastically
went down to P13.29 on 2 March 2004, after three days of no shortage. No shortage
occurred from 4 March until a shortage of P10.05 on 20 March. Six days later on 26
March there was P10.05 surplus
followed by another surplus of P20.04 three months later on 26 June 2005. While it is
admitted that the employer is entitled to set standards, looking at the applicant's
shortcomings as recorded one wonders what the huffing and puffing was about at the
hearing. In his plea in aggravation the obviously irate Kedimotse asserted:
'She has been given enough chances to prove herself and still continued with her bad working
performance. The company cannot afford mistakes like that.'
This is the employee who was not able to say in court what counselling was given to the
applicant. He had no clue as to what was meant by counselling.
The facts of this case as shown by the respondent's record do not support the allegation
that the applicant did not improve. A reduction in shortages after the employer's
complaint cannot be regarded as inconsequential. The applicant improved on the
worrisome shortage of P99.95 by reducing it to P10.05 and eventually to zero shortage.
It is only regretted that she crossed the line to overages.
We are told by the case of Gostelow (supra) that a 'value judgment regarding
unacceptable performance must be objective and reasonable to be valid'. Was the P2
norm objective and reasonable? In other words was it not 'grossly
inappropriate,' (Brereton v Bateman Industrial Corporation Ltd (supra); Empangani
Transport Pty Ltd v Zulu (1992) 13 ILJ 352 (LAC). The case of SA Commercial Catering
& Allied Workers' Union v Pep Stores (1998) 19 ILJ 939 (CCMA) provides useful
comparison at p 941:
'The standard for acceptable stock losses of the Pep Stores Group is 2% of sales, a figure
alleged to be the norm throughout the South African retail industry.'
The applicant's total sales for 26 June 2004 were recorded as P3,289.86. The figure
was increased by a surplus of P20.04 to P3,309.90. Using the norm said to apply
throughout the South African retail industry 2 per cent would yield P65.80, (2 per cent of
P3,289.86). In other words the shortage or surplus would have to be P65.80 to attract a
penalty. I have difficulty in accepting that the P2 norm taking into account what is
happening elsewhere, is reasonable. It seems to me that it is a vain search for
perfection not common among human beings. In the case of Letsema v Pep Botswana
Holdings Ltd t/a Pep Stores (IC 226/2000), unreported which I presided over, the norm
was also set at 2 per cent. A system that sets P2 as the norm and ignores the many
days that the employee has neither a shortage nor overage, cannot be 'objective and
reasonable'. As already said, unfortunately the court was not favoured with a properly
argued case in support of the P2 norm. It is up to the respondent to justify the objectivity
and reasonableness of the norm he chooses.
The other worrying aspect is the fact that the applicant worked for the respondent from
2001 doing the same job without any problem until 2004. The respondent's
representatives were not able to assist the court in this respect. It is clear from the
record that a clean record for three years was not taken into account as mitigating the
applicant's failures. Of course she was working at a different branch during that time.
Could it be that she was better treated and therefore there was not 'upset mindedness'?
That should have been cause for the respondent to investigate rather than react to her
failings with anger and hostility.
Turning now to the applicant it is a pity that she did not get help in preparing her case.
Her statement of case does not, on the face of it, disclose a cause of action. It is more
in the nature of a plea in mitigation yet it ends by demanding six months' compensation.
Compensation is for wrongdoing. Therefore to claim compensation the litigant has to
show that there was wrongdoing. The statement speaks of problems in the repayment
of the loan, rent payments, and inability to meet her expenses from her wages. There
was also the question of illness. Taken at face value, one may ask what all these have
to do with employer. The respondent did not force a loan upon her, the costs of life
cannot be blamed on the employer. But on proper analysis it is clear that the message
that was being put across was, 'I have personal problems that affect my concentration.'
At the hearing of 21 July 2004 after narrating her problems, she concluded:
'All these problems resulted in me having this surpluses and shortages.'
She had said, in launching her appeal on 9 July 2002:
'But the cause of this hearing is not due to the fact that I had carelessness and negligence on my
work as it has been stated. The fact is I have social problems.'
If the employer had properly approached this case as a case of incapacity it would have
given the applicant sympathetic treatment which in turn would have been conducive to
assisting her, rather than being angered by her failures. The employer might have
nevertheless reached the conclusion that the only solution was dismissal. But that
decision would have been based on a proper assessment of the applicant's problems.
In addition to the purely personal problems the applicant also raised some systemic
problems which also required attention by her employers. She complained of being
required to do every thing in the store 'staff did not get along with me and one of them
JJ would want to beat me, at times would call me names like 2 colours, Lerwerweng
and that hurt me'. (Minutes of 21 July 2004 hearing.)
If you take her personal problems and add problems at the workplace, it becomes clear
that the applicant needed counselling, assistance and advice. She was pleading for a
helping hand. But what she got was hostility even as she worked to reduce shortages.
The applicant said she had been counselled. But when she was asked what the
counselling entailed she referred to the letters of warning. Clearly she also did not know
what counselling meant.
The applicant is not entirely free of blame in this case. For her to have taken a loan that
required nearly half her wages as monthly payments was imprudent. She cannot blame
the effects of that on her employer. It should also be said that the employer in giving the
applicant the loan should have ensured that it could be repaid without problems.
The applicant had problems with fellow workers who bullied her. She did not report this
to the manager and only revealed it when she was being warned about shortages. Her
supervisor did not treat her properly. She did not complain to higher authority. She had
poor health. She did not report to the authorities. At the hearing of 6 July 2004 the
applicant was clearly reluctant to open up. She could not even repeat what she had said
in answering the questionnaire of 4 March 2004. Regrettably, the employer who had
her answers to the questionnaire did not make reference to it. It was only when she
wrote a letter of appeal of 9 July 2004 that she restated her problems.
Having pointed the shortcomings on the part of the applicant, the court is nevertheless
satisfied that on balance, the greater blame is on her employer. The employer did not
create conditions which would have encouraged the applicant to open up. When asked
in court by Mr Mosipuri for the respondent why she did not talk to her supervisors the
applicant replied:
'I spoke to Mrs Butale. Mma-Butale did not take any action. I did not take any other action. I gave
up because the treatment I found at work would not have helped.'
It should be noted that Mrs Butale was one of her superiors, probably her supervisor.
When all is said, a clear picture of a hostile work environment is revealed. The applicant
was the victim of that hostile environment. That environment engendered in the
applicant a psychosis that placed her on the unwanted list. She felt she did not belong,
because all the things that ought to have been done by her employer as recited from
case law were not done, while all the things which ought not to have been done
were done. Her pleas were ignored. She was treated with anger, and threatened as if
she had misbehaved when a sympathetic ear would have calmed her nerves. That is
not the way to deal with incapacity.
Compensation
The applicant, poorly articulated as her claim has been, is demanding compensation of
six months. Is she entitled to a compensation of six months? I do not think so. Is she
entitled to any compensation at all?
Section 24 of the Trade Disputes Act (Cap 48:02) provides:
'In any case where the Court determines that an employee has been wrongfully dismissed or
disciplined, the Court may, subject to its discretion to make any other order which it considers just (a)
(b)
...
in the case of wrongful disciplinary action, order compensation as it considers
just.'
I have gone to great lengths to show what went wrong in the handling of the applicant's
case. The employer failed to take appropriate procedural steps before terminating the
applicant's contract. Who knows, those steps if taken may have averted dismissal.
Subsection 4 of s 24 of the Trade Disputes Act requires the court to take into account
certain factors in assessing the amount of compensation. These include:
(a)
the actual or future loss to be suffered by the employee;
(b)
the age of the employee;
(c)
the prospects of finding other employment;
(d)
the circumstances of the dismissal.
The court is unable to say the applicant would not have been dismissed if all the
procedural steps had been taken. But it is clear that those steps were not taken and that
the circumstances of the dismissal left a lot to desired. In the view of the court the
applicant is entitled to at least two months' compensation for wrongful disciplinary
action.
Determination
The determination of the court is as follows:
(a)
The respondent was wrong to treat the applicant's case as a case of
misconduct instead of a case of incapacity which is a no fault failure.
(b)
The respondent failed to take the necessary steps for dealing with cases
of non-negligent poor performance before dismissing the applicant.
(c)
The respondent was wrong to allow the chairman of the lower enquiry to
be the prosecutor on appeal against his decision as the inclination to defend one's
decision made him hostile to the applicant.
(d) In view of the foregoing, the respondent is hereby ordered to pay the applicant
P1,540 being the equivalent of applicant's two months' monetary wages as
compensation for wrongful disciplinary action.
(e)
The amount of P1,540 shall be paid to the applicant through the office of
the registrar of this court on or before 31 March 2006.
(f)
No order is made as to costs.
We agree on the facts:
M Koloi
Nominated Member (Union)
L T Matsheka
Nominated Member (BOCCIM)