Africology Spa (Pty) Ltd v Malgas NO and Others (PR65/14) [2015] ZALCPE 60 (13 November 2015)

Africology Spa (Pty) Ltd v Malgas NO and Others (PR65/14) [2015] ZALCPE 60 (13 November 2015)

The court found that the arbitrator erred in concluding that Bailey had been constructively dismissed. The evidence showed that Bailey's grievances were addressed promptly by the applicant, and her failure to attend the grievance meeting was unreasonable. The arbitrator incorrectly relied on the number of grievances and Bailey's unhappiness, which are insufficient to establish constructive dismissal. The court held that management issues are inherent in the workplace and must be assessed to determine if they render continued employment intolerable. The third respondent failed to discharge the onus of proving constructive dismissal on a balance of probabilities. Consequently, the...

Citation
[2015] ZALCPE 60
Parties
Applicant: Africology Spa (Pty) Ltd; Respondent: Theresa Malgas N.O.; Respondent: The National Bargaining Council for the Hairdressing, Cosmotology, Beauty and Skincare Industry; Respondent: UASA obo Tamaryn Bailey
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
13 November 2015
Case Number
PR65/14
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. It is substituted with a finding that the bargaining council lacked jurisdiction to arbitrate the dispute.
Judges
Lallie
Legal Topics
Constructive Dismissal, Jurisdiction of Bargaining Council, Onus of Proof, Unfair Labour Practice
Labour Law Civil Procedure Constructive Dismissal Jurisdiction of Bargaining Council Onus of Proof Unfair Labour Practice

Case Brief

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Parties

Africology Spa (Pty) Ltd

Applicant

Theresa Malgas N.O.

Respondent

The National Bargaining Council for the Hairdressing, Cosmotology, Beauty and Skincare Industry

Respondent

UASA obo Tamaryn Bailey

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator correctly found that the employee was constructively dismissed.
  2. 2 Whether the bargaining council had jurisdiction to arbitrate the dispute.
  3. 3 Whether the arbitrator failed to apply her mind to the evidence and legal principles.

Ratio Decidendi

The court found that the arbitrator erred in concluding that Bailey had been constructively dismissed. The evidence showed that Bailey's grievances were addressed promptly by the applicant, and her failure to attend the grievance meeting was unreasonable. The arbitrator incorrectly relied on the number of grievances and Bailey's unhappiness, which are insufficient to establish constructive dismissal. The court held that management issues are inherent in the workplace and must be assessed to determine if they render continued employment intolerable. The third respondent failed to discharge the onus of proving constructive dismissal on a balance of probabilities. Consequently, the...

Court Disposition

The arbitration award is reviewed and set aside. It is substituted with a finding that the bargaining council lacked jurisdiction to arbitrate the dispute.

Orders

  • The arbitration award issued by the first respondent under case number DIS/128/13 and dated 14 February 2014 is reviewed and set aside.
  • It is substituted with the finding that the second respondent lacked jurisdiction to arbitrate the dispute referred by the third respondent.