Bloemcare v Morerela and Others (JR187/01) [2002] ZALCJHB 27 (6 March 2002)

Bloemcare v Morerela and Others (JR187/01) [2002] ZALCJHB 27 (6 March 2002)

The court found that the arbitrator failed to properly consider all the evidence and did not apply her mind to the relevant facts. The swearing incident, while offensive, was isolated and did not render continued employment intolerable, especially given the applicant's attempt to rectify the situation. The third respondent did not lodge a grievance or pursue alternatives before resigning, and her perception of intolerability was not objectively reasonable. The award of compensation for constructive dismissal was therefore unjustified. The court condoned the late filing of the review application, set aside the arbitrator's award, and substituted it with a finding that the third respondent...

Citation
[2002] ZALCJHB 27
Parties
Applicant: Bloemcare; Respondent: Commissioner M B Morerela; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Jeanette Harrington
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
6 March 2002
Case Number
JR187/01
Procedural Posture
Review Application / Judgment
Outcome
Review application granted; arbitrator's award set aside and substituted with a finding of voluntary resignation; condonation for late filing granted; costs order for wasted costs only.
Judges
E Revelas
Legal Topics
Constructive Dismissal, Review of Arbitration Award, Condonation of Late Filing, Procedural Fairness
Labour Law Civil Procedure Constructive Dismissal Review of Arbitration Award Condonation of Late Filing Procedural Fairness

Case Brief

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Parties

Bloemcare

Applicant

Commissioner M B Morerela

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Jeanette Harrington

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the third respondent was constructively dismissed or voluntarily resigned.
  2. 2 Whether the arbitrator's award was justifiable and rationally based on the evidence.
  3. 3 Whether the late filing of the review application should be condoned.

Ratio Decidendi

The court found that the arbitrator failed to properly consider all the evidence and did not apply her mind to the relevant facts. The swearing incident, while offensive, was isolated and did not render continued employment intolerable, especially given the applicant's attempt to rectify the situation. The third respondent did not lodge a grievance or pursue alternatives before resigning, and her perception of intolerability was not objectively reasonable. The award of compensation for constructive dismissal was therefore unjustified. The court condoned the late filing of the review application, set aside the arbitrator's award, and substituted it with a finding that the third respondent...

Court Disposition

Review application granted; arbitrator's award set aside and substituted with a finding of voluntary resignation; condonation for late filing granted; costs order for wasted costs only.

Orders

  • The late filing of the review application is condoned.
  • The award of the second respondent dated 7 December 2000 is set aside.