Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to www.worklaw.co.za
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on alcohol in the workplace, including whether this should be dealt with as incapacity or misconduct. We also look at three cases: the first deals with the issue of when arbitrators or judges should recuse themselves. The second deals with the employer’s obligations when dealing with poor performance. The third is dealt with as an aspect of our article: when is dismissal fair for workplace intoxication?
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
Will you get a fair hearing? The recusal of a biased commissioner.
You walk into the CCMA or bargaining council arbitration and find that the commissioner / arbitrator is someone you have encountered before. Maybe they ruled against you in a previous arbitration. Maybe you sense an over-friendly relationship between the arbitrator and the other party. Maybe the arbitrator used to have some kind of professional relationship with the other party. What do you do?
The Code of Conduct for CCMA commissioners requires commissioners to disclose any interest or relationship that is likely to affect their impartiality or which might create a perception of partiality. Even without a similar code of conduct in place, bargaining council arbitrators would be under a similar duty of disclosure. This duty to disclose rests with the commissioners. Commissioners appointed to intervene in any matter should, before accepting appointment, disclose –
- any direct or indirect financial or personal interest in the matter;
- any existing or past financial, business, professional, family or social relationship which is likely to affect impartiality or may lead to a reasonable perception of partiality or bias;
- if the circumstances requiring disclosure are unknown to commissioners prior to accepting appointments, disclosure must be made when such circumstances become known to the commissioners. The disclosure in this regard could in arbitration proceedings, include witnesses who may have a relationship with the commissioners.
- if the terms of reference provide for a procedure to be followed for determining challenges to the commissioners then those procedures should be followed;
- if commissioners, after carefully considering the matter, determine that the reason for the challenge is not substantial and that they can nevertheless act impartially and fairly, and
- that the withdrawal would cause unfair delay or would be contrary to the ends of justice.
Despite these grounds, the Commissioner had refused to recuse himself. The Labour Court held that the test for recusal is whether a reasonable objective and informed person would on the correct facts reasonably apprehend that the Judge (or arbitrator) has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of both the parties. The Court accordingly adopted a similar approach to the case of BTR Industries SA (Pty) Ltd v Metal and Allied Workers` Union 1992 (3) SA 673 (A) which effectively supported the contention that the test was not one of actual bias but a reasonable apprehension of bias.
The court went on to hold that a person who renders services not only as a commissioner but also as a representative of one of the parties before the CCMA should recuse himself or herself without hesitation if the apprehension of bias is based on the dual role played by the commissioner. A commissioner who has litigated against a party who is scheduled to appear before him or her should disclose that fact immediately she or he receives notice of the hearing and offer to recuse herself or himself. In this case the Labour Court set aside the Commissioner’s award, finding that he should have recused himself.
There will be times when awkwardness about an arbitrator is not based on any of the grounds set out above, but on a bad experience in a previous arbitration. While you subjectively feel that your arbitrator does not have a mind open to persuasion by the evidence and the submissions of both the parties, there is no objective evidence to substantiate this. It is important to note that the test for recusal is an objective one, and the onus of establishing it rests upon the applicant. Support for this can be found in the Constitutional Court case of President of the Republic of South Africa and Others v SA Rugby Football Union and Others 1999 (7) BCLR 725 (CC). You risk alienating the arbitrator by requesting recusal (some arbitrators will be insulted that you see them as prejudiced) and if your application for recusal is refused, you have to proceed with bad feeling in the room. This might work to your advantage as the arbitrator may be anxious to prove that there is no bias! But unless you can bring your application under one of the grounds listed in the Code, we recommend you tread very warily about applying for recusal. If the subsequent award shows that there is in fact bias, the award may then be taken on review.
Dealing with poor work performance
You have an employee who consistently fails to meet targets. You counsel, you advise, you train. Eventually you believe that there is incapacity: poor work performance – an inability to do the work at the standards required. But how flexible does an employer have to be? Is dismissal the only option? These issues emerged in the recent review case of Chesteron Industries (Pty) Ltd v CCMA (Case no: P286/06, 2008 (LC)) .
The employee who prior to his dismissal was employed by the applicant at its Port Elizabeth premises, was employed as a selling device specialist. The employee was dismissed as result of the poor work performance. The dismissal was subsequent to a disciplinary hearing and after both poor performance counselling and a series of warnings.
During August 2005, the employee was counselled about his poor work performance (a failure to reach sales targets) and was advised that one of the managers would accompany him whenever he visited clients so that he could assist him. The employee having failed to improve his performance received his first written warning on the 12th September 2005. The second written was issued just under a month later on the 3rd October 2005. Further counselling and written warnings were issued against the employee with no sign of improvement. It was a result of this that the applicant convened a formal poor performance hearing against the employee which resulted in his dismissal.
The commissioner found on the basis of the above that the employee’s poor performance was serious enough to justify dismissal. The commissioner also found that the targets which were set for the employee were reasonable. That was not the end of the story, however.
Having made these findings the commissioner proceeded to conclude that:
It does not make sense to say that although an employee’s poor performance is serious enough to justify a dismissal the employer is not allowed to unilaterally alter the conditions of employment in order to accommodate an employee.”
The commissioner further reasoned that:
“In an economic climate such as ours where a large percentage of the population is unemployed, employers should be encouraged to keep an employee in their employment by accommodating the employee in changing the remuneration structure of an employee, rather than dismissing him.”
It was on the basis of the above that the commissioner concluded that the dismissal of the employee was unfair and that the applicant should rather have restructured the salary of the employee to that of 20% fixed commission. In arriving at this conclusion the commissioner reasoned that:
“ … a rational sound financial reason for placing an employee under this circumstance on a commission basis, the employer would no longer be financially burdened with an employee who does not make sufficient sales to justify his existence. The commission base system would serve as a motivation tool to ensure that an employee generates sufficient sales in that his remuneration would be directly linked to his performance.”
Not surprisingly perhaps, the employer took this decision on review to the Labour Court. The Labour Court restated the law: The duty to show that the employee was incompetent rests with the employer, by adducing evidence that shows poor performance on the part of the employee. To this extent the employer has to show that its assessment of the performance of the employee was objective and reasonable. A positive result into whether the employee was aware of the performance standard and was given a fair opportunity to meet the required standard would lead to a further enquiry as to whether the dismissal was a fair sanction in the circumstances of a given case. Consideration of alternatives to dismissal would be a factor to take into account in assessing the appropriateness of the dismissal.
The Labour Court held that the conclusion reached by the commissioner was not reasonable. On the commissioner’s own finding, the applicant had done every thing to accommodate the employee and afforded him over a period of three years the opportunity to improve and meet the required standard. The Court said that the commissioner in his assessment of the fairness of the dismissal failed in a fundamental way to balance in a fair manner the interest of both parties.
This case illustrates that poor performance needs to be managed proactively. The employer’s duty is to try to get the performance up to the required standard through training, counselling, monitoring, etc. If the employee nevertheless fails to reach that standard, dismissal is not the automatic sanction. An employer is obliged to consider alternatives to dismissal. But there comes a point where fairness to the employer allows an employer to dismiss for incapacity.
INFORMATION ABOUT WORKLAW
Worklaw is a comprehensive labour law advice and information service, developed by some of South Africa`s most experienced labour arbitrators. Worklaw subscribers get free advice from experienced arbitrators via e-mail, can research the law and leading cases, are updated monthly on new cases, trends etc, and can use excellent training material, to name a few of these services. Subscribers are invited to an annual labour law workshop covering the key cases and trends from the past year.
Contact us for more information:
Telephone: 031-561 5004
Fax: 031- 561 6906