Nedcor Bank Ltd v Harris and Others (JR927/01) [2009] ZALC 123 (14 December 2009)

Nedcor Bank Ltd v Harris and Others (JR927/01) [2009] ZALC 123 (14 December 2009)

The court found that the applicant had been dilatory in prosecuting the review application, but the first respondent also contributed to the delay and failed to take steps to expedite the matter. The explanation for the delay was unsatisfactory, but prospects of success on the merits justified proceeding. On the merits, the commissioner misconceived the test for constructive dismissal by focusing on the employee's perception of risk rather than objectively assessing whether conditions at the workplace were intolerable at the time of resignation. The commissioner exceeded his powers by considering issues outside the scope of the pre-arbitration agreement. The evidence showed that the first...

Citation
[2009] ZALC 123
Parties
Applicant: Nedcor Bank Limited; Respondent: James George Harris; Respondent: Commissioner Bheki Khumalo; Respondent: Commission for Conciliation Mediation and Arbitration
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
14 December 2009
Case Number
JR927/01
Procedural Posture
Review Application / Judgment on Opposed Review Application
Outcome
Review application granted; arbitration award reviewed and set aside; substituted with finding that the applicant was not constructively dismissed but resigned; CCMA lacks jurisdiction.
Judges
Molahlehi
Legal Topics
Constructive Dismissal, Unreasonable Delay, Review of Arbitration Award, Performance Improvement Programme, Jurisdiction of Ccma
Labour Law Civil Procedure Constructive Dismissal Unreasonable Delay Review of Arbitration Award Performance Improvement Programme Jurisdiction of Ccma

Case Brief

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Parties

Nedcor Bank Limited

Applicant

James George Harris

Respondent

Commissioner Bheki Khumalo

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment on Opposed Review Application

Legal Issues

  1. 1 Whether the delay in prosecuting the review application should result in its dismissal.
  2. 2 Whether the arbitration award finding constructive dismissal was reasonable and within the commissioner's powers.
  3. 3 Whether the first respondent was constructively dismissed or resigned voluntarily.

Ratio Decidendi

The court found that the applicant had been dilatory in prosecuting the review application, but the first respondent also contributed to the delay and failed to take steps to expedite the matter. The explanation for the delay was unsatisfactory, but prospects of success on the merits justified proceeding. On the merits, the commissioner misconceived the test for constructive dismissal by focusing on the employee's perception of risk rather than objectively assessing whether conditions at the workplace were intolerable at the time of resignation. The commissioner exceeded his powers by considering issues outside the scope of the pre-arbitration agreement. The evidence showed that the first...

Court Disposition

Review application granted; arbitration award reviewed and set aside; substituted with finding that the applicant was not constructively dismissed but resigned; CCMA lacks jurisdiction.

Orders

  • The point in limine seeking dismissal of the review application due to delay is dismissed.
  • The arbitration award issued by the second respondent is reviewed and set aside.