Plastic Sign Manufacturing (Pty) Ltd v Phetha NO and Others (JR 831/08) [2011] ZALCJHB 141 (5 May 2011)

Plastic Sign Manufacturing (Pty) Ltd v Phetha NO and Others (JR 831/08) [2011] ZALCJHB 141 (5 May 2011)

The court found that the arbitrator failed to apply the correct legal test for constructive dismissal and did not properly consider the evidence. The employee did not resign, and there was no evidence that the employer created an intolerable situation. The arbitrator's conclusion of constructive dismissal was unsupported and unreasonable. The evidence established that the dispute arose from a personal family conflict, not from conduct by the employer rendering continued employment intolerable. The employee did not discharge the onus of proving dismissal, and the arbitrator made no credibility findings against the applicant's witnesses. The award was therefore reviewed and set aside, and...

Citation
[2011] ZALCJHB 141
Parties
Applicant: Plastic Sign Manufacturing (Pty) Ltd; Respondent: Commissioner Mpho Phetla N.O.; Respondent: Centre for Dispute Resolution: A Division of the Metal and Engineering Industries Bargaining Council; Respondent: Mary Stark
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
5 May 2011
Case Number
JR 831/08
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The review application is granted. The arbitration award is reviewed and set aside, and substituted with an order dismissing the referral. Costs are awarded against the third respondent.
Judges
Bhoola
Legal Topics
Constructive Dismissal, Unfair Dismissal, Review of Arbitration Award, Onus of Proof, Procedural Irregularity
Labour Law Constructive Dismissal Unfair Dismissal Review of Arbitration Award Onus of Proof Procedural Irregularity

Case Brief

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Parties

Plastic Sign Manufacturing (Pty) Ltd

Applicant

Commissioner Mpho Phetla N.O.

Respondent

Centre for Dispute Resolution: A Division of the Metal and Engineering Industries Bargaining Council

Respondent

Mary Stark

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 evidence established a constructive dismissal or an unfair dismissal.
  3. 3 Whether the arbitrator committed gross irregularities in his award.

Ratio Decidendi

The court found that the arbitrator failed to apply the correct legal test for constructive dismissal and did not properly consider the evidence. The employee did not resign, and there was no evidence that the employer created an intolerable situation. The arbitrator's conclusion of constructive dismissal was unsupported and unreasonable. The evidence established that the dispute arose from a personal family conflict, not from conduct by the employer rendering continued employment intolerable. The employee did not discharge the onus of proving dismissal, and the arbitrator made no credibility findings against the applicant's witnesses. The award was therefore reviewed and set aside, and...

Court Disposition

The review application is granted. The arbitration award is reviewed and set aside, and substituted with an order dismissing the referral. Costs are awarded against the third respondent.

Orders

  • The arbitration award is reviewed and set aside.
  • The referral is dismissed.