Maoka v General Public Service Sectoral Bargaining Council (JA14/2012) [2014] ZALAC 28 (12 June 2014) per Francis AJA [Waglay JP and Molemela AJA concurring]
LAC Summary: Constructive dismissal- employee bearing the onus to prove that resignation due to employer making continued employment intolerable- employee transferred to various vacant posts- arbitrator finding that employee not constructively dismissed. Evidence showing that the true reason for employee resigning was disagreement on remuneration- Labour Court correct in upholding arbitration award- Appeal dismissed.
Introduction
[1] The appellant who was employed by the third respondent – the Department of Justice and Constitutional Development (the department), resigned on 12 September 2008 and referred a constructive dismissal dispute to the first respondent – the General Public Service Sectoral Bargaining Council (the bargaining council). He alleged that the department had made his continued employment intolerable by transferring him to a position for which there was no post and then transferred him twice to posts that were not vacant, which compelled him to resign. The second respondent (the arbitrator) was appointed as an arbitrator. He issued an award and found that the appellant had failed to prove that he was dismissed and dismissed his referral with no order as to costs.
[2] The appellant brought a review application to set aside the arbitration award.
[3] The application was dismissed by Bruinders AJ on 24 January 2012 on the basis that the appellant had failed to prove that he was dismissed but had resigned after the department had failed to offer him an increased salary. The court found that although the arbitrator had found on a different basis that the appellant’s resignation did not amount to a constructive dismissal, he was correct that his resignation did not amount to a constructive dismissal.
[4] The appeal before us is with leave of the court a quo.