Uthingo Management (Pty) Ltd v Shear NO and Others ([2009] 6 BLLR 590 (LC); (2009) 30 ILJ 2152 (LC)) [2009] ZALC 263; [2009] ZALC 9 (15 January 2009)

Uthingo Management (Pty) Ltd v Shear NO and Others ([2009] 6 BLLR 590 (LC); (2009) 30 ILJ 2152 (LC)) [2009] ZALC 263; [2009] ZALC 9 (15 January 2009)

The court held that both Mills and du Plessis expressed a clear and unambiguous intention to terminate their employment, which was accepted by the applicant. The employer was entitled to determine the last working day in accordance with the contractual notice period, and the misinterpretation of the notice clause did not convert the resignation into a dismissal. The CCMA lacked jurisdiction as there was no dismissal. The Commissioner misconceived the task before him and committed a gross irregularity by entertaining an unfair dismissal dispute where none existed. The arbitration award was reviewed and set aside, and substituted with a finding that the employees were not dismissed but had...

Citation
[2009] ZALC 263
Parties
Applicant: Uthingo Management (Pty) Ltd; Respondent: Larry Shear N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Andre du Plessis; Respondent: Craig Mills
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
15 January 2009
Case Number
JR 2007/07
Procedural Posture
Review Application / Labour Court Review of CCMA Arbitration Award
Outcome
Arbitration award reviewed and set aside; substituted with a finding of no dismissal and voluntary resignation; CCMA lacked jurisdiction.
Judges
Molahlehi
Legal Topics
Unfair Dismissal, Resignation, Notice Period, Jurisdiction of Ccma
Labour Law Civil Procedure Unfair Dismissal Resignation Notice Period Jurisdiction of Ccma

Case Brief

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Parties

Uthingo Management (Pty) Ltd

Applicant

Larry Shear N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Andre du Plessis

Respondent

Craig Mills

Respondent

Procedural Posture

Review Application / Labour Court Review of CCMA Arbitration Award

Legal Issues

  1. 1 Whether the termination of employment of Mills and du Plessis constituted a dismissal or voluntary resignation.
  2. 2 Whether the CCMA had jurisdiction to entertain the dispute.
  3. 3 Whether the Commissioner committed a gross irregularity in his award.

Ratio Decidendi

The court held that both Mills and du Plessis expressed a clear and unambiguous intention to terminate their employment, which was accepted by the applicant. The employer was entitled to determine the last working day in accordance with the contractual notice period, and the misinterpretation of the notice clause did not convert the resignation into a dismissal. The CCMA lacked jurisdiction as there was no dismissal. The Commissioner misconceived the task before him and committed a gross irregularity by entertaining an unfair dismissal dispute where none existed. The arbitration award was reviewed and set aside, and substituted with a finding that the employees were not dismissed but had...

Court Disposition

Arbitration award reviewed and set aside; substituted with a finding of no dismissal and voluntary resignation; CCMA lacked jurisdiction.

Orders

  • The arbitration award issued by the first respondent is reviewed and set aside.
  • The award of the first respondent is substituted with the following: (a) The applicants, Mr du Plessis and Mr Mills, were not dismissed. (b) Mr du Plessis and Mr Mills voluntarily resigned from the employ of the respondent. (c) The CCMA does not have jurisdiction to entertain the dispute.