Shoprite Checkers (Pty) Ltd v Nkosi and Others (JR625/20) [2022] ZALCJHB 4; [2022] 5 BLLR 469 (LC) (7 February 2022)

Shoprite Checkers (Pty) Ltd v Nkosi and Others (JR625/20) [2022] ZALCJHB 4; [2022] 5 BLLR 469 (LC) (7 February 2022)

The court found that Mr Nkosi failed to provide substantial and concrete evidence of intolerability as required for constructive dismissal. His grievances were either addressed or did not reach the threshold of intolerability. The Commissioner misconstrued the jurisdictional enquiry and incorrectly found that Mr Nkosi was dismissed. As a result, the arbitration award was reviewed and set aside, and substituted with an order that Mr Nkosi failed to prove dismissal under section 186(1)(e) of the LRA. The CCMA therefore lacked jurisdiction to entertain the dispute.

Citation
[2022] ZALCJHB 4
Parties
Applicant: Shoprite Checkers (Pty) Ltd; Respondent: Prince Nkosi; Respondent: Commissioner Musolwa Rapalalane N.O; Respondent: Commission for Conciliation Mediation and Arbitration
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
7 February 2022
Case Number
JR625/20
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. It is substituted with an order that Mr Nkosi failed to prove dismissal as contemplated in section 186(1)(e) of the LRA, and the CCMA has no jurisdiction to entertain the dispute. No order as to costs.
Judges
P Nkutha-Nkontwana
Legal Topics
Constructive Dismissal, Jurisdiction of Ccma, Review of Arbitration Award, Intolerability Threshold, Section 186 Lra
Labour Law Civil Procedure Constructive Dismissal Jurisdiction of Ccma Review of Arbitration Award Intolerability Threshold Section 186 Lra

Case Brief

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Parties

Shoprite Checkers (Pty) Ltd

Applicant

Prince Nkosi

Respondent

Commissioner Musolwa Rapalalane N.O

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the Commissioner had jurisdiction to determine the constructive dismissal claim.
  2. 2 Whether Mr Nkosi proved intolerability sufficient for constructive dismissal under section 186(1)(e) of the LRA.
  3. 3 Whether the arbitration award should be reviewed and set aside.

Ratio Decidendi

The court found that Mr Nkosi failed to provide substantial and concrete evidence of intolerability as required for constructive dismissal. His grievances were either addressed or did not reach the threshold of intolerability. The Commissioner misconstrued the jurisdictional enquiry and incorrectly found that Mr Nkosi was dismissed. As a result, the arbitration award was reviewed and set aside, and substituted with an order that Mr Nkosi failed to prove dismissal under section 186(1)(e) of the LRA. The CCMA therefore lacked jurisdiction to entertain the dispute.

Court Disposition

The arbitration award is reviewed and set aside. It is substituted with an order that Mr Nkosi failed to prove dismissal as contemplated in section 186(1)(e) of the LRA, and the CCMA has no jurisdiction to entertain the dispute. No order as to costs.

Orders

  • The arbitration award issued by the Commissioner under case number GAJB25245-19 and dated 24 February 2020 is reviewed and set aside.
  • Mr Nkosi failed to prove that he was dismissed as contemplated in terms of section 186(1)(e) of the LRA.