Botha v Commission for Conciliation Mediation and Arbitration and Others (P160/11) [2013] ZALCPE 5; [2013] 8 BLLR 756 (LC); (2013) 34 ILJ 2212 (LC) (22 February 2013)

Botha v Commission for Conciliation Mediation and Arbitration and Others (P160/11) [2013] ZALCPE 5; [2013] 8 BLLR 756 (LC); (2013) 34 ILJ 2212 (LC) (22 February 2013)

The court found that the arbitrator correctly concluded there was no dismissal, as the objective facts did not support the applicant's claim. The applicant refused to sign a termination notice and did not accept a new placement, but there was no overt act of dismissal by the third respondent. The employment contract remained effective, and the applicant's refusal to relocate did not amount to repudiation. The review application was ill-founded, as the award was already favourable to the applicant, and the applicant had secured alternative employment. The third respondent, having successfully opposed the application, was entitled to costs.

Citation
[2013] ZALCPE 5
Parties
Applicant: Melinda Botha; Respondent: CCMA; Respondent: Feizal Fataar N.O; Respondent: National Health Laboratory Services
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
22 February 2013
Case Number
P160/11
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Review application dismissed with costs awarded against the applicant.
Judges
Moshoana
Legal Topics
Unfair Dismissal, Jurisdiction of Ccma, Repudiation of Contract, Costs Award
Labour Law Civil Procedure Unfair Dismissal Jurisdiction of Ccma Repudiation of Contract Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

Melinda Botha

Applicant

CCMA

Respondent

Feizal Fataar N.O

Respondent

National Health Laboratory Services

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the applicant was dismissed by the third respondent within the meaning of the LRA.
  2. 2 Whether the arbitrator correctly exercised jurisdiction in reinstating the applicant without back pay.
  3. 3 Whether the applicant's refusal to accept a change in work location constituted repudiation of the employment contract.

Ratio Decidendi

The court found that the arbitrator correctly concluded there was no dismissal, as the objective facts did not support the applicant's claim. The applicant refused to sign a termination notice and did not accept a new placement, but there was no overt act of dismissal by the third respondent. The employment contract remained effective, and the applicant's refusal to relocate did not amount to repudiation. The review application was ill-founded, as the award was already favourable to the applicant, and the applicant had secured alternative employment. The third respondent, having successfully opposed the application, was entitled to costs.

Court Disposition

Review application dismissed with costs awarded against the applicant.

Orders

  • The review application is dismissed with costs.