UNISA v Nowosenetz NO and Others (JR2519/14) [2017] ZALCJHB 95 (23 March 2017)

UNISA v Nowosenetz NO and Others (JR2519/14) [2017] ZALCJHB 95 (23 March 2017)

The court found that the arbitrator's conclusion that the third respondent was constructively dismissed was incorrect and unreasonable. The evidence showed that the third respondent had reasonable alternatives to resignation, including engaging with management following the outcome of the joint grievance and the invitation to discuss further concerns. The restructuring of the ICT Department had been in effect for years prior to her resignation, and she did not challenge it through appropriate channels. The court held that her resignation was premature and likely motivated by the impending disciplinary hearing, not by intolerable working conditions. Therefore, there was no constructive...

Citation
[2017] ZALCJHB 95
Parties
Applicant: UNISA; Respondent: L Nowosenetz N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: E N Ngcingwana
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
23 March 2017
Case Number
JR2519/14
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The finding is substituted with a determination that the third respondent was not dismissed and was not constructively dismissed. No order as to costs.
Judges
Mothibi
Legal Topics
Constructive Dismissal, Review of Arbitration Award, Unfair Labour Practice, Jurisdictional Ruling, Compensation, Disciplinary Hearing
Labour Law Constructive Dismissal Review of Arbitration Award Unfair Labour Practice Jurisdictional Ruling Compensation Disciplinary Hearing

Case Brief

Summary, issues, holding and outcome

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Parties

UNISA

Applicant

L Nowosenetz N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

E N Ngcingwana

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the third respondent's resignation constituted a constructive dismissal.
  2. 2 Whether the arbitrator's finding of constructive dismissal was reasonable and supported by the evidence.
  3. 3 Whether the award of compensation to the third respondent was justified.

Ratio Decidendi

The court found that the arbitrator's conclusion that the third respondent was constructively dismissed was incorrect and unreasonable. The evidence showed that the third respondent had reasonable alternatives to resignation, including engaging with management following the outcome of the joint grievance and the invitation to discuss further concerns. The restructuring of the ICT Department had been in effect for years prior to her resignation, and she did not challenge it through appropriate channels. The court held that her resignation was premature and likely motivated by the impending disciplinary hearing, not by intolerable working conditions. Therefore, there was no constructive...

Court Disposition

The arbitration award is reviewed and set aside. The finding is substituted with a determination that the third respondent was not dismissed and was not constructively dismissed. No order as to costs.

Orders

  • The second respondent’s arbitration award dated 28 October 2014 under case number GATW4148-14 is reviewed and set aside in its entirety.
  • The award is substituted with the finding that the third respondent was not dismissed by the applicant and consequently was not constructively dismissed.