Labour Court upholds R116,000 award to worker dismissed over poor performance.
The Labour Court in Cape Town dismissed an employer’s attempt to overturn an arbitration award ordering it to pay a former employee R116,000 in compensation after finding that his dismissal for poor work performance was substantively unfair.
Judge Robert Lagrange dismissed Intellisec Access Control (Pty) Ltd’s review application challenging an arbitration award in favour of Stuart Bougaard.
The dispute arose after Intellisec dismissed Bougaard on grounds of incapacity relating to poor work performance following a performance improvement plan (PIP).
Commissioner LT Cita, who arbitrated the dispute, found that the dismissal was substantively unfair and ordered the company to pay Bougaard four months’ remuneration, amounting to R116,000.
Intellisec approached the Labour Court seeking to have the award reviewed and set aside, arguing that the arbitrator had ignored material evidence and reached a conclusion no reasonable arbitrator could have made.
However, Judge Lagrange found that the arbitrator’s conclusions were supported by the evidence and fell within the range of reasonable decisions available to her.
Employee struggled with company software
According to the judgment, Bougaard started working for Intellisec on October 31, 2022, after attending three days of general company training in Durban.
His responsibilities included client liaison, stocktaking, issuing stock and managing the storeroom, with the company’s customised Business Process Optimiser (BPO) software playing an important role in its accounting and stock-control processes.
During 2023, Bougaard reportedly informed management that he was struggling with aspects of his work.
An administrative assistant was appointed in February 2024 to assist him, but the company maintained that his performance remained unsatisfactory.
In May 2024, Intellisec introduced key performance indicators (KPIs) and placed Bougaard on a performance improvement plan, which involved several assessment sessions.
The company said it provided assistance through instructional Loom videos prepared by its financial manager, support from management and a WhatsApp group established by the operations director to remind Bougaard about tasks.
After the performance improvement process, the matter was referred to an independent chairperson, who recommended his dismissal.
Worker claimed training was inadequate
Bougaard, however, argued that the company had failed to provide him with proper training on the BPO system despite knowing that he was not a qualified accountant.
He maintained that his initial training in Durban was merely a general company orientation and did not cover the complex accounting and stock-control software.
He also argued that the two instructional videos provided by the company dealt with basic functions he already understood and did not address the more complicated transactions with which he struggled.
The Labour Court found that Intellisec’s own evidence supported several of Bougaard’s concerns.
The company’s branch manager, C Kotze, conceded during arbitration that the business had not previously implemented formal KPIs for Bougaard’s position and that the performance evaluation system was introduced across the company in May 2024.
Kotze also acknowledged that he was unaware of any KPI policy or guideline and could not establish that Bougaard had been properly informed of the performance standards against which he was assessed.
Judge Lagrange said the company had allowed Bougaard to work for approximately 18 months without establishing performance baselines or formally raising performance concerns, before introducing complex software-related KPIs and placing him on an eight-week improvement plan.
The court further found that the company had provided only two short instructional videos on the BPO system, despite acknowledging that the employee had difficulties with it.
The judge said an employer’s obligation to provide guidance, counselling and training required meaningful support tailored to the employee’s identified shortcomings.
The appointment of an administrative assistant was also not necessarily evidence of effective assistance, as Bougaard had been required to train the newly recruited employee while continuing with his own duties.
Employer’s other performance complaints rejected
The court rejected Intellisec’s argument that the arbitrator had ignored other operational shortcomings, including alleged failures involving stock management, vehicle tracking and tool checks.
Judge Lagrange said Kotze had provided vague evidence about these alleged failures and conceded that he was personally aware of only one tool check that had not been properly conducted.
The company had also failed to demonstrate that the alleged operational problems had been formally investigated or measured against established performance standards.
The judge said the arbitrator had correctly focused on the dispute that emerged from the oral evidence, particularly Bougaard’s difficulties with the BPO system and the absence of adequate training.
Court upholds R116,000 compensation award
In dismissing the review application, Judge Lagrange found that the arbitrator had correctly applied the requirements governing dismissals for poor work performance under Item 9 of Schedule 8 to the Labour Relations Act.
The judge said the arbitrator’s findings that Intellisec had failed to establish poor performance against a known standard, provide adequate training and afford Bougaard a reasonable opportunity to improve were not unsustainable.
“The arbitrator’s conclusions ... fall within the range of reasonable decisions open to an arbitrator. There is no basis in law or fact to interfere with the award,” the judge ruled.
The review application was dismissed, with no order as to costs.