The Labour Court reviewed and set aside a retrospective reinstatement award after finding that the reason for dismissal at the end of the probationary period was substantively fair, in the sense of being valid and fair, but the procedure was unfair.  Three months compensation was awarded, amounting to R372,000.

Senior management formed the view over the six months of probation that the employee was fundamentally unsuited to consulting and lacked the “DNA” of a consultant.  They also decided she lacked the ‘necessary skills of adaptability to sudden change, the willingness to undertake a wide range of work, some of it relatively menial, the willingness to undertake unfamiliar work in new fields and that her personality was probably better suited to employment on the client side i.e. in corporate life’.  In effect she was incompatible with the position for which she had been hired.

IBM South Africa (Pty) Ltd v CCMA (JR64/2014) [2016] ZALCJHB 151 ; (2016) ILJ 2099 (19 April 2016) per Hawyes AJ.

 

Excerpts from judgment

“[35]      Although the wording of Item 8(1)(j) leaves a lot to be desired it effectively means that during probation, before the employee is established or entrenched in the workplace, the employer has the right to dismiss for lesser reasons than would be the case after probation. This must be acknowledged and applied by any Arbitrator or Court considering the matter.

[36]      In this matter the Arbitrator did not draw a distinction between a permanent employee and one on probation and proceeded to treat the Third Respondent as if she had been dismissed as a permanent employee.

[37]      Had the Arbitrator applied her mind to the concept of ‘less compelling reasons’ which is applicable to the dismissal of probationary employee she would have given a more empathetic ear to the concerns of the Applicant relating to the Third Respondent’s work performance, compatibility to fit into the IBM workplace plus her general attitude and demeanour”.