Kaeka (second appellant)
In respect of "cognitive assessment", Hanstein found Kaeka’s capability to be focussed on "quality"; his "reasoning and conceptual ability" to be "above average" and his personality preference assessment to be warm–hearted, talkative, popular and
"conscientious".
[19] To buttress the point I made about the purpose of psychometric profiling, Hanstein adds the following abstract conclusions about
the personality type in respect of "personality preference assessment":
Kahoro:
"[U]sually do not care to lead but are often loyal followers. Often relaxed about getting things done because they enjoy the
present moment and do not want to spoil it by undue haste or exertion".
Kaeka:
"[B]orn co-operators, active committed members. Need harmony and may be good at creating it. Always doing something nice for
someone. Work best with encouragement and praise. Main interest is in things that directly and visibly affect people’s lives".
[20] The psychometric evaluation reports of the appellants were received by Feris from Hanstein on 6th June. The next step was the panel interviews. This took place in respect of both. In respect of both appellants the panel consisted
of Feris, Raymond Pragt who was the Channel Development Specialist, Dankie Nangombe who had only shortly before joined the respondent,
Mark Spyker and the external consultant Sidney Hanstein. The evidence shows that Hanstein’s findings were presented to the
panel after which the appellants were individually interviewed. Feris was the chairperson of the interview panel. Raymond Pragt was
the Senior Manager to whom Spyker reported, while Dankie Nangombe was the Regional Sales Manager.
[21] The evidence also shows (confirmed by both Feris and Kaeka) that during the course of the interview with Kaeka, Spyker asked
Kaeka what he would do to regain a certain "Okalindi" client’s account which it had lost to a competitor. Kaeka answered,
implying Spyker was poorly informed as he (Kaeka) had already regained the account, that Spyker should not ask stupid questions,
a doubtless offensive remark which Kaeka attributed to the fact that not only was the loss of the account the doing of Spyker, but
that he (Kaeka) had in the meantime regained the account any way.
[22] Having deliberated, the panel came to the following conclusions in respect of the appellants:
Kahoro:
The panel found his customer relations "a bit doubting", his selling skills questionable and his technical knowledge lacking.
It also found that he would need a lot of management support. The panel recommended him with "big reservation".
Kaeka:
The panel found that Kaeka showed a "negative approach to work and to management", and had very "basic functional and technical knowledge". It also found that he could not work in a team and showed "serious time management indiscipline". It found his "cognitive, reasoning and conceptual ability very concerning low" (sic) and that he would need a lot of development. The panel also found that Kaeka lacked "people environment skills" (whatever that means).
The upshot was that the panel did not recommend Kaeka and recommended Kahoro with reservation. It did so without disclosing its findings
to the two appellants and without entertaining any representations from them on its findings.
[23] Once the panel completed its work its findings were placed before the Managing Director, Mr Maske, who authorised the retrenchments.
Maske did not ask for or receive any representations from the appellants before taking the dismissal decision. Feris testified that
the two appellants accepted without any reservation of rights the retrenchment packages paid out after the negotiations aimed at
averting retrenchment failed. (Kaeka’s explanation, which I accept in respect of both appellants, is that they really had no
choice accepting such payments because they had financial commitments to meet. Nothing can therefore turn on this).
[24] Cross-examination of Feris on behalf of the appellants established that Mark Spyker, in his capacity as Manager Sales (i.e. the
supervisor of the two appellants), sat on the interview panel which had to determine the appellants’ suitability. It was put
to Feris, and he admitted or at best could not dispute, that prior to the sitting of the interview panel, there was a conflict situation
between Spyker and the appellants over what was perceived by Spyker as the appellants’ refusal to comply with his instruction
in respect of the vehicles assigned to the appellants - what is referred to in the record as the "canopy issue". Spyker
had wanted the employees, including the appellants, to mount branded canopies on the bakkies issued to them by NBL. The employees
affected, including the appellants, objected to that because they felt that being entitled to the use of the cars for private purposes,
it would put them in bad light with the public who would see them using the respondent’s property for private purposes; and
because of the discomfort the windowless and unventilated canopies would cause to members of their families they would convey in
the vehicles. The employees lodged a grievance against the instruction and management decided against it but unhappiness about the
instruction continued to simmer; and especially Kaeka felt they still needed to discuss the matter with management. It seems that
the other employees accepted the management’s explanation but the appellants did not. The tenor of the evidence is that Kaeka
was most outspoken about the issue. Whatever the merits of the dispute, it was put to Feris, and he did not deny, that Spyker had
told the two appellants that he would see to it that they would not pass the assessment intended for consideration of their suitability
for re-appointment - come the restructuring. In his testimony Kaeka explained that he understood Spyker as saying that because of
the canopy issue he would make sure that the appellants would not make it in the assessment.
[25] Kaeka testified that he, accompanied by the first appellant, conveyed the threat made by Spyker to Pragt whose interest in the
matter seemed confined to ascertaining if the first appellant made common cause with Kaeka on the canopy issue as Pragt understood
that only Kaeka refused to mount the canopy as directed. The first appellant confirmed his involvement in the matter. Kaeka added
that he specifically requested Pragt to discuss the issue of the threat with Spyker in view of the impending assessment. This crucial
testimony was not disputed by evidence under oath, although Mr Corbett for the appellants argued that the allegation was never put
to Feris on cross-examination. Although a good point, one should not lose sight of the fact that the appellants were represented
in the trial court by a person without legal training.
[26] Mr Beukes, who acted for the appellants in the trial court, put to Feris that there was a duty on the part of Feris to exclude
Spyker from the panel based on the prejudice that he had earlier expressed against the two appellants. The full impact of Feris’
response to this crucial question forming part of the appellants’ case does not come to the fore as significant parts of his
answers are shown on the typewritten transcription as "indistinct" - but what I am able to discern is that Feris felt that
whatever prejudice Spyker may have harboured against the appellants would have been counterbalanced by the other members of the panel.
As fate would have it, Spyker and Pragt were not called to gainsay the allegations made against them, while the other panellists
were not called to shed light on what exactly influenced their decisions.
[27] I need to make the following comments immediately. Hanstein had found Kaeka’s reasoning and conceptual ability above average,
yet the panel found it to be "very concerning low". The panel also found (and that could only come from Pragt and Spyker)
that Kaeka had a "negative approach" to work and management, yet Hanstein found him to be "conscientious". I say that the information must have come from the two for the following reasons: Hanstein was an outsider, Nangombe had only
shortly before joined the respondent, and Feris, as Human Resources Manager, was not the line manager working with the appellants.
That leaves only Spyker and Pragt who were the line managers of the appellants. Spyker had made the threat against the appellants
and Pragt, as Spyker’s supervisor, was aware of the animosity between the appellants and Spyker and, on Kaeka’s version,
only seemed interested to know who else was not complying with the directive in addition to Kaeka, instead of pursuing Kaeka’s
request that he discuss the matter of Spyker’s threat in advance of the assessments.
[28] Feris conceded in evidence that he was not aware that the canopy issue had been resolved by the time of the interviews. The conclusion
is inescapable that Kaeka’s alleged "negative attitude to management", at least partially, had something to do with the canopy issue. The people who knew about that, as the evidence shows, were
Pragt, Spyker and Feris. Feris’ interest in the matter would have been only tangential at best, whereas Spyker certainly had
a more than passing interest in the matter; and Pragt seems to have been well briefed about the matter. In the circumstances, the
issue becomes not so much that the animosity between the appellants and Spyker was not raised with the panel and therefore did not
influence it, but that there was a failure to bring it to the panel’s attention so that the other panellists could have been
on guard and not allow Spyker’s subjective view of the appellants to influence them. It is hard to imagine that Hanstein, Nangombe
and Feris could not have placed great weight on any assessment of the appellant’s suitability by Spyker; and it is even harder
to imagine that he did not express opinions about the appellants’ suitability. It may be argued that the comment about the
"negative attitude to management" was made only about Kaeka and not about Kahoro. A fair point, yes, but sight should not be lost of the fact that the evidence
shows that it was Kaeka who seemed to feel most strongly about the matter; and it does provide corroboration for the version that
the canopy issue affected the relationship between Spyker and the employees who remained involved in it.
[29] It became clear during the course of Feris’ testimony that the appellants’ representative did not consider the outcome
of the interview evaluations as fair because the results thereof were not discussed with the appellants. Put another way, the complaint
was that the appellants should have been afforded the opportunity to make representations to the panel following its adverse evaluation
of the appellants. If the charge of "negative attitude to management", for example, was disclosed to Kaeka, it is most probable that he would have pointed out that it was motivated by animosity
between him and Spyker.
[30] The appellants were unsuccessful in the trial court which found that the respondent complied with the requirement of a fair procedure
and had a valid and fair reason for the appellants’ discharge. The appellants then appealed to the Labour Court (the court
a quo) which found that the employer did not follow a fair procedure. The court a quo, however, found that although the employer’s procedure was not fair, contrary to s 45(1)(a) of the Labour Act, the dismissal
which ensued was for a valid and fair reason and that reinstatement was not possible in the circumstances, holding that: "As regard the second requirement however, if the District Labour Court holds that a fair procedure was not followed but a valid and
fair reason was proved, the Court may not order reinstatement, reemployment or compensation". The Court a quo relied for that conclusion on the case of Kamanya and Others v Kuiseb Fish Products Ltd., 1996 NR 123 (LC) in which O’Linn P (as he then was) came to the following conclusion (at 127J – 128A-C):
"The result in my view is that no order for reinstatement, re-employment or compensation should be made by the District Labour
Court against the employer, where the employer has succeeded in proving before it a fair reason for the dismissal, whether or not
such employer has proved that a fair procedure was applied before the domestic tribunal. In such a case it will be open to the District
Labour Court to find that the employee has not been ‘dismissed unfairly’. However, there may be instances where failure by the domestic tribunal to apply a fair procedure, would be sufficient for setting
aside its dismissal of a complaint, e.g. where no opportunity was given to deal with the question of the appropriate sanction to
be imposed and where the misconduct was not so grave as to merit immediate and summary dismissal. In the alternative, if I am wrong in the above stated view, then in a case where the employer has proved a fair reason for dismissal
but has failed to prove a fair procedure, the District Labour Court would be entitled in accordance with s46 (1) (c), not to grant
any of the remedies provided for in s46 (1) (a) and (b) but to confirm the dismissal or to decline to make an order." (My emphasis)
Section 45(1)(a) of the Labour Act states:
"any employee dismissed, whether or not notice has been given in accordance with any provision of this Act or any term or condition
of a contract of employment or of a collective agreement;
…
without a valid and fair reason and not in compliance with a fair procedure, shall be regarded to have been dismissed unfairly…"
[31] In the present appeal, the correctness of Kamanya has not been raised. The parties in fact proceeded on the basis that Kamanya represents good law and for the purposes of this appeal I therefore assume that Kamanya was correctly decided.
[32] The decision of the court a quo
The court a quo found that the respondent failed to prove that it followed a fair procedure in dismissing the appellants. It held that the unfavourable
assessment of the appellants by the interviewing panel ought to have been disclosed to the appellants with an invitation for them
to make representations thereon as the panel in its evaluation made a subjective value judgment about the appellants. As the court a quo said:
“Mr Kaeka may well have been able to explain what may have been seen as a negative approach to work, or inability to work as a team
if he had the opportunity and thus a different perspective to the conclusions would have been thrown in’’.
[33] The failure to do so, the court a quo found, amounted to the denial of audi alteram partem. The Court also held that the inclusion of Spyker on the panel, against the backdrop of the animosity he had with the appellants over the canopy
issue and the threat he made against the appellants, was improper. The court a quo reasoned that a "person who approaches a decision making process with a closed mind, or an adverse interest or bias against the person upon whom a
decision is to be made could not render a fair administrative decision". (My emphasis). Addressing the point that the appellants should have asked for the recusal of the individuals they believed
to harbour bias against them, the court a quo said that it could not have been expected of the appellants as lay-men to bring a recusal application and that the employer who bore
the onus of proof that the dismissals were fair, had the obligation to exclude biased officials. The Court added that the nature
and size of the respondent should not have made it difficult to find substitutes for Pragt and Spyker.
[34] Mr Heathcote, for the appellants, submitted that since the appellants alleged and proved the threat by Spyker that he would see
to it that the two appellants did not make it in the assessment process, the respondent should have called Spyker to gainsay it.
In criticising the judgment of the court a quo on its finding that there was a valid and fair reason and that the Court could not set aside the dismissal, Mr Heathcote submitted
that it is not clear from that Court’s judgment if the Court appreciated (in interpreting Kamanya) that it had a discretion
in the matter. He continued that if indeed the Court appreciated that it had such discretion, it failed to exercise it properly.
Appellants’ argument further was that rather than demonstrate, as found by the trial court, Kaeka’s unsuitability for
re-employment, Kaeka’s comment that Spyker not ask stupid questions, was evidence of animosity between Spyker and Kaeka, strengthening
the case that Spyker should not have been included on the panel in the first place. The appellants’ case further is that it
is reasonable to conclude that that remark negatively influenced the panel against Kaeka in its conclusion that he was not suitable
to be re-employed; accordingly, the respondent failed to prove that there was a valid reason for the dismissal. According to Mr Heathcote,
the appellants could not have been expected to participate at all in the tainted process and that the fact that they did not raise
any objection to Spyker’s participation on the panel is irrelevant in view of the obligation resting on the respondent to have
seen to it that the procedure was fair.
[35] For his part Mr Corbett, on behalf of the respondent, submitted that the conduct of the respondent should be viewed in the context
of the restructuring process as a whole. He took the view that the court a quo’s finding that there was procedural unfairness was wrong but that its conclusion that there was a valid and fair reason for the dismissal
is sound and should be upheld. Mr Corbett submitted that even if we should find that Spyker should not have participated in the assessment
of the two appellants, it does not follow that the appeal should succeed as there is no proof that he negatively influenced the rest
of the panel. According to Mr Corbett, the issue must be decided on the probabilities which favour the conclusion that Spyker could
not have imposed his point of view on the other panellists who, in any event, far out-numbered him. Mr Corbett added that Spyker
had not even raised the canopy issue during the deliberations of the interviewing panel. Mr Corbett argued against the finding of
the court a quo that it was necessary to observe audi in this case after the panel had taken its evaluation decision. He submitted that it was not necessary for the appellants to be shown
and to make representations on the evaluation results because what was involved was not a performance appraisal but an assessment
of suitability of the candidates for new positions. Mr Corbett conceded though that, "although with less force" as he termed
it, the principle that (in the case of dismissals and disciplinary hearings) the presiding officer should not be biased and should
keep an open mind, also applies to a restructuring process where a determination is to be made whether retrenched employees should
be re-employed in the restructured business. He also conceded that a reasonable suspicion of bias would be relevant in the employment
context such as the present if the person taking the decision is shown to be personally antagonistic towards the employee.
[36] In my view, not only should Spyker not have participated on the panel, but seeing that he did, the dispute which had arisen between
him and the appellants over the canopy issue should have been fully disclosed to the rest of the panel so that they could properly
weigh any adverse assessment by Spyker and Pragt about the appellants. I agree with the reasoning of the court a quo that the unfavourable evaluations of the appellants by the panel should have been disclosed to them for them to make representations
if they wanted to, before the final decision was made. I say so for three reasons. Firstly, the history of animosity between Spyker
and the appellants raised the possibility that Spyker would not be favourably disposed towards the appellants and they were entitled
to rely on that for the inference that the panel would be negatively influenced by Spyker and should guard against it. Secondly,
the panel’s findings of the appellants' unsuitability were based, in no small measure, on the appellants’ perceived poor
performance and lack of competence - and that required for them being placed in a position to challenge it (as to which see De Vries & Others v Lanzeric Hotel & Others, (1993) 14 ILJ 1460 (LAC) at 1464 F-H); and thirdly, the personality profiling of the appellants by Hanstein was in significant respect
different from what the panel concluded after the interviewing process. What changed in the meantime? The appellants were entitled
to make representation thereon. I do not think the distinction between a performance appraisal and assessment for suitability suggested
by Mr Corbett is a good one. The facts of each case will determine whether or not such disclosure, coupled with the opportunity to
make representations, is necessary.
[37] I come to the conclusion therefore that the court a quo correctly concluded that the procedure followed by the respondents in dismissing the appellants was unfair.
[38] The court a quo however found a valid and fair reason in that:
(i)
the employer negotiated in good faith once the retrenchment of the appellants became inevitable;
(ii)
The appellants were offered alternative employment,
but refused.
Because there was a valid and fair reason for the dismissal, even though a fair procedure was not followed, the court a quo refused to hold that the dismissals were unfair and it accordingly refused the appeal. (See record pp 627-628). The appellants obtained
leave from the court a quo to appeal to this Court.
[39] Leave to appeal was granted for the determination of the following:
“1.1
despite having found that the procedure through which the applicants were
dismissed, was unfair (the court a quo) did not uphold the
appeal;
1.2
she erred in finding that the word ‘and’ as used in section 24(2) of the Labour Act, 1992:
(a)
does not mean that the employer must satisfy both requirements (i.e. of procedural and substantial
fairness); alternatively
(b)
even if, in certain circumstances, it is not necessary for the employer to satisfy both requirements
, the learned judge erred in casu, in not holding that in the circumstances of the applicants’ case, both requirements had to be satisfied, and more particularly
in that:
(i)
the termination procedure is interwoven with the obligation to negotiate in a bona fide
.RTF of original document