RULING
29.08.07
[1]
This is an
application for determination of an unresolved dispute brought by
the applicant against the respondent.
[2]
The
applicant claims that she was constructively dismissed by the
respondent.
[3]
In its reply the respondent raised points in limine.
The
court is called upon to make a ruling on these points before the
application goes for trial.
[4]
The first point raised by the respondent is that:
"The
applicant, according to her letter of resignation she did not allege
any constructive dismissal. Further no averment in her letter that
she once complained about unfair treatment. In the circumstances she
left employment at her own accord. "
[5]
The
court will point out that there is no legal requirement that an
employee who claims to have been constructively dismissed should
make the allegations of constructive dismissal in the letter of
resignation. JOHN GROGAN in his book "WORKPLACE
LAW"
2005 8th
EDITION
AT PAGE 113 states as follows dealing with this subject;
"Such
coerced resignations or departures are commonly known as
'constructive dismissals'. The employees concerned are deemed to
have been dismissed even though they themselves terminated the
contract. The employees need not have formally resigned, however;
constructive dismissal can be proved even when the employees simply
left their employment in circumstances
that would otherwise have amounted to abscondment."
[6]
It follows therefore that this point must be dismissed.
[7]
The respondent further raised the point that:
"Further
in her letter of resignation she referred to a complain which
occurred while she was working at Textile World a company which has
not been cited in these proceedings yet it has an interest. "
[8]
If there is another company that has an interest in these
proceedings, it may simply apply to the court to be joined. The
respondent's contention is not that of non-joinder. The court is not
sure how mentioning of Textile World in the applicant's resignation
letter prejudices the respondent in these proceedings. In the
application before court the applicant's claim is against the
respondent only. This point will also be dismissed.
[9]
The third point raised is that of jurisdiction. The respondent
argued that in the report of dispute annexure "NN1" at
paragraph 5.2 it is stated that the dispute first arose in November
2001. The respondent argued that if the dispute first arose in
November 2001, the dispute is now time barred. The respondent
further argued that the application is defective in that the party
referring the dispute to CMAC did not personally sign the documents.
With
respect, we do not agree with the respondent's submissions. The
applicant instructed the present attorney to represent her. The
attorney told the court that he filled the forms of the report of
the dispute on behalf of his client, the applicant.
The
applicant's attorney further told the court that it was him who made
the mistake by writing that the dispute first arose in November
2001.
The
court will accept the applicant's attorney's explanation especially
in the light of annexure "A" of the applicant's
application. Annexure "A" is a document that shows that
the applicant left the respondent's employment on 3 February 2006
after having been accused of being short of cash in the till, but
was not invited to join the counting.
From
the report of the dispute annexure "NN1" the applicant was
first employed by the respondent in November 2001. One of the claims
that the applicant has filed against the respondent is that of
underpayment. The respondent's argument was that since the
underpayments had been going on for a number of years, it must be
taken that the dispute first arose on the date of the first
underpayment.
We
do not agree with the respondent. The claim for underpayments is
just one of the prayers that the applicant seeks before the court.
The present application is based on constructive dismissal of the
applicant alleged to have taken place on 3 February 2006. It is
clear that the point of law raised that the dispute is time barred
was misconceived. It is accordingly dismissed.
It
was also argued that the respondent was wrongly cited in this
application. This argument was based on the fact that in the
certificate of unresolved dispute the respondent's name appears as
"TIL Greatelac
Investments (PTY) Ltd" whereas in this application the
respondent's name appears as "TJL Greate Lac Investments (Pty)
Ltd t/a Mr. Cheap Fabric Centre"
There
was no dispute that TJL Create Lac Investments (Pty) Ltd is the
parent company and it has a number of other subsidiaries. There was
no dispute that Mr. Cheap Fabric Centre (Manzini) is one of them.
[17]
The respondent, as it appears from the papers before the court, did
raise this point when the matter was at CMAC level. The CMAC
Executive Director made a ruling in which he pointed out that the
respondent should have been cited as "TJL Greate Lac
Investments (Pty) Ltd trading as Mr. Cheap Fabric Centre".
[18]
The CMAC commissioner in the certificate of unresolved dispute
however entered the name of the respondent only as TJL Greatelac
Investments (Pty) Ltd, and omitted the words "trading as Mr.
Cheap Fabric Centre" as directed by the Executive Director.
That omission cannot be allowed to prejudice the applicant's case at
this stage. In her application the applicant managed to cite the
name of the respondent in full as TJL Greatelac Investments (Pty)
Ltd t/a Mr. Cheap Fabric Centre. In any event, the complaint of the
respondent is that its name has not been cited in full in the
certificate of unresolved dispute, and not that the applicant cited
the wrong party.
[19]
The respondent further raised the point that the certificate of
unresolved dispute has no issues in dispute and there is nothing to
be determined by the court. This point has no merit as the
certificate of unresolved dispute clearly states under paragraph 2.3
that the dispute remains unresolved. There is no requirement that
claims arising from unresolved disputes be listed.
(See:
SAMUEL FANYANA SIKHONDZE V. WILLIAM
BARRY ROCHAT (IC) CASE NO. 19/2007).
[20]
Taking into account all the above observations, the points in limine
will
be dismissed, and that is the order that the court makes.
There
is no order as to costs.
NKOSINATHI
NKONYANE
JUDGE
- INDUSTRIAL COURT
