Ubuntu Education Fund v Paulsen N.O and Others (PA12/17) [2019] ZALAC 56; [2019] 11 BLLR 1252 (LAC); (2019) 40 ILJ 2524 (LAC) (15 August 2019)

Ubuntu Education Fund v Paulsen N.O and Others (PA12/17) [2019] ZALAC 56; [2019] 11 BLLR 1252 (LAC); (2019) 40 ILJ 2524 (LAC) (15 August 2019)

The Labour Appeal Court found that the evidence demonstrated the probation period was implicitly extended to allow for ongoing performance appraisal, and Sonyaya remained a probationary employee at the time of dismissal. The commissioner and Labour Court erred in concluding that Sonyaya had automatically become a permanent employee simply by remaining in employment after the initial probation period. The appellant conducted regular performance assessments, and Sonyaya consistently failed to meet the required standards, scoring below 50% in all appraisals. The Code of Good Practice permits a lower standard of substantive fairness for probationary employees, and the employer provided...

Citation
[2019] ZALAC 56
Parties
Appellant: Ubuntu Education Fund; Respondent: Paulsen N.O; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: National Education Health and Allied Workers Union; Respondent: Zandile Sonyaya
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
15 August 2019
Case Number
PA12/17
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Dismissing Review Application
Outcome
Appeal upheld; Labour Court judgment and commissioner’s award set aside.
Judges
Tlaletsi, Murphy, Savage
Legal Topics
Probationary Employment, Poor Work Performance, Unfair Dismissal, Code of Good Practice, Substantive Fairness
Labour Law Probationary Employment Poor Work Performance Unfair Dismissal Code of Good Practice Substantive Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Ubuntu Education Fund

Appellant

Paulsen N.O

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

National Education Health and Allied Workers Union

Respondent

Zandile Sonyaya

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Dismissing Review Application

Legal Issues

  1. 1 Whether the employee was a probationary or permanent employee at the time of dismissal.
  2. 2 Whether the dismissal for poor work performance was substantively and procedurally fair.
  3. 3 Whether the commissioner and Labour Court erred in their findings regarding the completion of probation.

Ratio Decidendi

The Labour Appeal Court found that the evidence demonstrated the probation period was implicitly extended to allow for ongoing performance appraisal, and Sonyaya remained a probationary employee at the time of dismissal. The commissioner and Labour Court erred in concluding that Sonyaya had automatically become a permanent employee simply by remaining in employment after the initial probation period. The appellant conducted regular performance assessments, and Sonyaya consistently failed to meet the required standards, scoring below 50% in all appraisals. The Code of Good Practice permits a lower standard of substantive fairness for probationary employees, and the employer provided...

Court Disposition

Appeal upheld; Labour Court judgment and commissioner’s award set aside.

Orders

  • The award issued by the first respondent dated 8 October 2015 is reviewed and set aside.
  • It is substituted with an order that the dismissal of the fourth respondent was substantively and procedurally fair.