Virgin Active SA (Pty) Ltd v Bhana and Others (C704/2002) [2003] ZALC 13; [2004] 2 BLLR 194 (LC) (4 September 2003)

Virgin Active SA (Pty) Ltd v Bhana and Others (C704/2002) [2003] ZALC 13; [2004] 2 BLLR 194 (LC) (4 September 2003)

The court found that the Third Respondent failed to discharge the onus of proving that he had been dismissed on 3 October 2001. The evidence showed that the Applicant repeatedly requested the Third Respondent to return to work, and his refusal constituted desertion rather than dismissal. The First Respondent's arbitration award was irrational, illogical, and disregarded material evidence, including the Third Respondent's own initiation of severance discussions and lack of reference to dismissal in communications with colleagues. The First Respondent confused the concept of constructive dismissal with the facts at hand, which was never alleged or pleaded. The award was therefore irregular...

Citation
[2003] ZALC 13
Parties
Applicant: Virgin Active SA (Pty) Ltd; First Respondent: Bhana, S N O; Second Respondent: The Commissioner for Conciliation, Mediation and Arbitration; Third Respondent: Teladia, Haroun
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
4 September 2003
Case Number
C704/2002
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award made by the First Respondent is reviewed and set aside. No order as to costs.
Judges
B M Jammy
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Burden of Proof, Constructive Dismissal, Desertion, Compensation
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Burden of Proof Constructive Dismissal Desertion Compensation

Case Brief

Summary, issues, holding and outcome

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Parties

Virgin Active SA (Pty) Ltd

Applicant

Bhana, S N O

First Respondent

The Commissioner for Conciliation, Mediation and Arbitration

Second Respondent

Teladia, Haroun

Third Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the Third Respondent was dismissed by the Applicant on 3 October 2001.
  2. 2 Whether the arbitration award made by the First Respondent was rational and supported by the evidence.
  3. 3 Whether the Third Respondent discharged the onus of proving dismissal.

Ratio Decidendi

The court found that the Third Respondent failed to discharge the onus of proving that he had been dismissed on 3 October 2001. The evidence showed that the Applicant repeatedly requested the Third Respondent to return to work, and his refusal constituted desertion rather than dismissal. The First Respondent's arbitration award was irrational, illogical, and disregarded material evidence, including the Third Respondent's own initiation of severance discussions and lack of reference to dismissal in communications with colleagues. The First Respondent confused the concept of constructive dismissal with the facts at hand, which was never alleged or pleaded. The award was therefore irregular...

Court Disposition

The arbitration award made by the First Respondent is reviewed and set aside. No order as to costs.

Orders

  • The Third Respondent's award dated 24 May 2002 is reviewed and set aside.
  • There is no order as to costs.