The Constitutional Court referred to the “troubling features” of a case when refusing an employer leave to appeal against a CCMA arbitration award in which 10 months compensation was awarded to a constructively dismissed employee on 19 January 2005.

The employer’s application to the Labour Court to review the award was only set down for hearing two years later.   After further delays the Labour Appeal Court refused to grant leave to appeal on 8 December 2008 without providing any reasons.   The Supreme Court of  Appeal did deal with a petition for leave to appeal speedily but refused leave to appeal.

It is interesting to note that in dealing with the test for constructive dismissal the Constitutional Court in Strategic Liquor Services v Mvumbi NO referred to Murray v Minister of Defence, a recent decision of the Supreme Court of  Appeal dealing with the issue in terms of the common law requirement of “fair dealing”, rather than referring to any decisions referring to the concept of constructive dismissal as developed in terms of the Labour Relations Act s186(1)(e), incorrectly referred to as s186(e) in the judgment [see para 3].

In dealing with the failure of judicial officers to provide reasons the Constitutional Court referred to section 34 of the Constitution which provides that:

“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”.

The Constitutional Court went on to state in para 18:

“The Court in Mphahlele v First National Bank of South Africa Ltd [1999] ZACC 1; 1999 (2) SA 667 (CC); 1999 (3) BCLR 253 (CC) added that it may well be that where a decision is subject to appeal it would ordinarily be a violation of the constitutional right of access to courts, if reasons were to be withheld by a judicial officer.   Although that opinion was tentatively expressed, there is much to support it.   It is not necessary to decide the point generally, since we have not had the benefit of hearing oral argument in this matter.   However, the failure by Nel AJ to furnish his reasons, when requested for the appeal process, cuts right across the employer’s right of access to courts”.