Niland v Ntabeni NO and Others (PR33/16) [2017] ZALCPE 6; [2017] 5 BLLR 521 (LC); (2017) 38 ILJ 1686 (LC) (24 February 2017)

Niland v Ntabeni NO and Others (PR33/16) [2017] ZALCPE 6; [2017] 5 BLLR 521 (LC); (2017) 38 ILJ 1686 (LC) (24 February 2017)

The applicant failed to prove that the employer made continued employment intolerable. Although the arbitrator's failure to consider written submissions rendered the award reviewable, the evidence before the court showed that the applicant continued working for two years after discovering the affair and did not...

Source-derived case information.

Citation
[2017] ZALCPE 6
Parties
Applicant: Bruce Desmond Niland; Respondent: Given Ntabeni N.O.; Respondent: CCMA; Respondent: Gregory Ernest Harvey
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
24 February 2017
Case Number
PR33/16
Procedural Posture
Review Application / Judgment After Review of Arbitration Award
Outcome
Application for review succeeds in respect of the arbitrator's failure to consider written submissions, but fails on the merits of constructive dismissal. No costs order is made.
Judges
Steenkamp
Legal Topics
Constructive Dismissal, Review of Arbitration Award, Jurisdictional Issue, Onus of Proof, Remedies Under Lra
Labour Law Constructive Dismissal Review of Arbitration Award Jurisdictional Issue Onus of Proof Remedies Under Lra

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Parties

Bruce Desmond Niland

Applicant

Given Ntabeni N.O.

Respondent

CCMA

Respondent

Gregory Ernest Harvey

Respondent

Procedural Posture

Review Application / Judgment After Review of Arbitration Award

Legal Issues

  1. 1 Whether the applicant was constructively dismissed as contemplated by section 186(1)(e) of the LRA.
  2. 2 Whether the arbitrator failed to consider the applicant's written submissions, rendering the award reviewable.
  3. 3 Whether the applicant is entitled to declaratory relief and compensation for alleged constructive dismissal.

Ratio Decidendi

The applicant failed to prove that the employer made continued employment intolerable. Although the arbitrator's failure to consider written submissions rendered the award reviewable, the evidence before the court showed that the applicant continued working for two years after discovering the affair and did not confront the employer about intolerable conditions prior to resignation. The applicant's decision to leave was motivated by alternative employment opportunities rather than intolerable conduct by the employer. The requirements for constructive dismissal under section 186(1)(e) of the LRA were not met, and the applicant was not dismissed as contemplated by the Act.

Court Disposition

Application for review succeeds in respect of the arbitrator's failure to consider written submissions, but fails on the merits of constructive dismissal. No costs order is made.

Orders

  • The award of the first respondent, Commissioner Given Ntabeni, under case number ECEL 3051/15 dated 8 February 2016 is reviewed and set aside.
  • It is declared that the applicant, Bruce Niland, was not dismissed as contemplated by section 186(1)(e) of the LRA.