FORMER Oprah Winfrey Leadership Academy for Girls (OWLAG) employee has lodged an appeal against the Labour Court ruling that favoured the school.
Simon Matiko, who was head of operations, has submitted an application for leave to appeal the order made by Judge Connie Prinsloo.
This was after Prinsloo dismissed Matiko’s case seeking to review and set aside a private arbitration that ruled against him last year.
Matiko also wanted the Labour Court to declare his dismissal from OWLAG unfair and be reinstated to his position.
Prinsloo delivered a judgment on November 28.
Matiko, who previously complained that the arbitrator’s conclusions constituted gross irregularities in the proceedings, said the court made an error in failing to find that OWLAG prevented him from a fair trial by failing to conduct an inquiry into poor work performance.
He said the school arbitrator misdirected his statutory mandate by also failing to apply the correct legal principles to a poor work performance inquiry as envisaged in item 9 of the Code of Good Practice – dismissal.
Matiko was appointed on probation between July 2021 and June 2022. He was dismissed for failing to possess leadership values and display the necessary executive leadership expected at the level of the head of operations.
But he said he was fired without a clear reason after he lodged a complaint about abuse of power, intimidation and victimisation, as well as the mistreatment of learners.
He also argued that only during the private arbitration that the school said he was fired for non-performance but failed to follow the presented code in the prescribed code in the Labour Relations Act schedule 8.8, which talks about steps for managing performance during probation.
He also said that the arbitrator committed gross irregularity by making determinations on facts that should be considered in misconduct proceedings and then used such irrelevant material for purposes of bringing it within the ambit of the probationary inqiury and drawing conclusions from it, based on speculation.
Prinsloo said Matiko did not make a single averment to the effect that the arbitrator acted capriciously or with bias.
In his papers, Matiko said it was evident from the provisions of sections 188, 191(5)(a)(i) and 194 of the Labour Relations Act (LRA), read together with item 8 of the Code of Good Practice – dismissal, that the LRA recognised three grounds on which a termination of employment could be legitimate.
These are the conduct of an employee, the capacity of an employee and an employer’s operational requirements.
“The applicant’s (Matiko) ground for review can be rephrased, as argued in the applicant’s heads of argument and during the arguments of the review application, that the first respondent (the arbitrator) ought to have conducted an inquiry based on a consideration of the facts enshrined in item 9 of the Code of Good Practice – dismissal. The first respondent did not conduct such inquiry at all,” read the papers.
He said the arbitrator devoted a disproportionate amount of attention to an issue that was wholly irrelevant to the matter at hand by conducting an inquiry into the legal principles of probationary employees and their tenure of employment from paragraphs 27 to 36 of the arbitration award.
Matiko further said that the arbitrator went on to draw a distinction between tenured employees and probationary employees and concluded that: “By recognising that probationary employees do not have permanent status, the code also suggests that it might not be fair to subject them to conditions of service different from those of permanent employees.
“It is probably not unfair, therefore, to deprive probations of benefits such as medical aid and pension subsidies during the period of probation.”
Matiko said the arbitrator should have also found out whether OWLAG, after addressing him regarding the alleged shortcomings pertaining to his soft skills on June 2022, three days before the expiry of probation, arranged an inquiry into such poor work performance and transpired during the inquiry based on the evidence that was presented by the school.
He said the arbitrator merely cited what was expected from him in relation to his duties and determinations of the provisions of item 9, but failed to conduct an inquiry into the relevant factors in its entirety.
“The first respondent’s finding in relation to the substantive fairness of the dismissal makes only one finding and that is that the applicant was aware of the expected standard of performance required of him.
“The first respondent merely refers to the second respondent’s (OWLAG) finding that the applicant lacked soft skills, but makes no inquiry whatsoever whether that is in actual fact the case or not and states reasons for such findings.
“This is especially said in the light of the fact that it was vigorously challenged by the applicant throughout the proceedings,” said Matiko.
OWLAG recently said it was pleased with Prinsloo’s judgment, which confirmed that Matiko was dismissed for good reasons and in accordance with a fair procedure.