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[2019] ZALCJHB 334
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Mongatane v Momentum Group Ltd (JR2343/18) [2019] ZALCJHB 334 (10 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG.
Not
Reportable
case
no:
JR
2343/18
In
the matter between:
TSHEGOFATSO
DAISY MONGATANE
Applicant
and
MOMENTUM
GROUP LTD
Respondent
Heard
:
10 September 2019
Delivered
:
10 September 2019
Edited:
27 November 2019
ex tempore
judgment
MOSHOANA,
J
[1]
Before me
is an application to review and set aside an arbitration award issued
by the second respondent to the effect that the
applicant failed to
discharge the onus to prove that she was dismissed within the meaning
of section 186(1)(e) of the Labour Relations
Act
[1]
(LRA). The application stands unopposed.
[2]
Briefly, the facts relevant to this matter are as follows: The
applicant
was employed as a credit controller from the year 2014. At
some point her supervisor went on maternity leave, and on the return
of the supervisor there were problems in relation to the working
relationship between the two, that is the applicant and her
supervisor.
Resultantly the applicant was hospitalised, allegedly
because of the verbal abuse received from her supervisor.
[3]
On 23 March 2018 the applicant lodged a formal grievance against her
supervisor.
On 9 April 2018 she resigned, citing reasons of
intolerability and unprofessionalism on the part of the employer. On
the same day,
the employer, through one Corrie Van Heerden, expressed
disappointment in her decision to resign, after what Corrie had
termed
a “
constructive meeting
” that morning.
Further, Ditebogo Modiba also expressed her disappointment in the
applicant resigning. On 14 April 2018 the
applicant referred the
dispute alleging unfair dismissal. On the 9 October 2018 the
award, which is under attack, was issued.
[4]
The test applicable to reviews of this nature remains that of
correctness
as opposed to reasonableness. The question then becomes:
on the objective facts that were presented before the commissioner,
was
the commissioner correct in concluding that the applicant had
failed to prove the dismissal? It is clear on the facts that
the applicant lodged a grievance, and clearly the intention to lodge
a grievance was to seek resolution of what effectively troubled
her.
The grievance procedure of the first respondent provides for three
steps: the applicant only took the first step, and shortly
thereafter
resigned.
[5]
Now, with those objective facts, the commissioner was right, that the
decision taken by the applicant to resign was taken hastily. Like a
dismissal that is occasioned at the behest of the employer,
resignation should also be a measure of last resort. It is clear on
the facts of this matter that the applicant did not even give
the
grievance process an opportunity to have her troubles resolved.
[6]
The clear intention on the part of the employer is shown by the two
senior
employees indicating that they were disappointed in the
decision that was taken by the applicant. Therefore, any submission
to
the effect that there were reports that certain things may or may
not happen is in effect an irrelevant consideration. What is relevant
is the question whether the applicant was facing intolerability,
which intolerability could not have been removed by the process
that
she had engaged in, which is the grievance process.
[7]
In my view, the applicant acted too hastily, and therefore she cannot
in terms of section 186(1) (e) of the LRA be considered to have been
constructively dismissed, she simply resigned. Therefore, the
commissioner was correct that the jurisdictional fact of dismissal
lacked in order for the exercise of jurisdiction to happen.
[8]
In the result I make the following order:
Order
1.
The application for review is dismissed.
2.
There is no order as to costs.
_______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
[1]
No. 66 of 1995, as amended.