Ronè Bester (Scott) v Small Enterprise Finance Agency SOC Ltd

The appellant, an advocate and head of legal services, was dismissed by the respondent for absenteeism and insolence. She had been transferred to the respondent in terms of section 197 of the LRA. Under the new regime, she clashed with Maboa, a senior manager who was seconded to the business unit. The appellant experienced significant discomfort from the relationship. While on leave, she sent an email to the CEO criticizing Maboa's treatment. Upon returning to work on 21 May, she inquired about resignation logistics and was suspended the same day pending disciplinary proceedings. Initially suspended on full pay, her salary was later stopped without notice. On 4 September, after her salary was stopped, she tendered her resignation effective 5 September. The respondent rejected the immediate resignation and insisted she serve notice until the end of September, to which she acquiesced. A disciplinary enquiry proceeded in her absence while she was ill, finding her guilty and dismissing her before the notice period ended. The CCMA arbitrator found the dismissal both substantively and procedurally unfair and awarded compensation equivalent to 8 months' salary. On review, the Labour Court upheld the unfair dismissal finding but reduced compensation to one month on the grounds that her resignation was voluntary and she should only receive compensation for the balance of her notice period.

• Whether the Labour Court was entitled to interfere with the arbitrator's discretion in awarding compensation under section 194(1) of the LRA
• What constitutes 'just and equitable' compensation in circumstances where an employee tendered resignation before dismissal
• Whether a tendered resignation that was not voluntary should be a factor in determining compensation for unfair dismissal
• Whether an employee appearing in person as a legal practitioner is entitled to costs including the value of her own legal expertise

The appeal was upheld. The arbitrator's award of 9 September 2015 was confirmed. The compensation equivalent to 8 months' salary was restored. The sum awarded was to be paid in full within 10 days to an account nominated by the appellant. The respondent was ordered to bear taxable costs arising from both the review and appeal proceedings, to be paid within 15 days of the taxation master's decision or agreement between parties.

Where an employee tenders a resignation that is not voluntary but induced by the employer's conduct, and the employer subsequently dismisses the employee before the notice period expires, the tendered resignation is irrelevant to the computation of compensation for unfair dismissal. The purpose of compensation under sections 193 and 194 of the LRA is not to compensate based on the employee's contractual 'positive interest' in the employment relationship, but is premised on broader considerations of what is just and equitable in all the circumstances. A court will only interfere with an arbitrator's discretion in awarding compensation under section 194(1) if the arbitrator acted capriciously, upon wrong principle, with bias, without substantial reasons, or adopted an incorrect approach. A legal practitioner who represents herself in litigation is entitled in principle to recover costs including the value of her own legal expertise devoted to the case, with quantification left to the taxing master.

The court noted that the appellant could have alleged constructive dismissal based on intolerable working conditions had she not been conventionally dismissed for misconduct, but that she did not need to pursue such a claim given the actual dismissal. The court observed that the jurisprudential issue of whether an employer can discipline an employee after a resignation did not arise because the appellant did not persist with an immediate termination (citing Naidoo and Another v Standard Bank SA Ltd and Another (2019) 40 ILJ 2589 (LC)). The court commented that the failure to address the appellant's grievances was essentially a duplication of the notion of unfair treatment already considered by the arbitrator.

This case clarifies important principles regarding compensation for unfair dismissal under sections 193 and 194 of the LRA. It establishes that a tendered resignation that is not voluntary (being induced by the employer's conduct) becomes irrelevant once the employer dismisses the employee, and should not be used to limit compensation. The case confirms that compensation under the LRA serves purposes broader than mere patrimonial damages and is premised on considerations of fairness and equity rather than contractual 'positive interest'. It also provides guidance on when costs orders are appropriate in labour matters, particularly for unrepresented individuals, and confirms that legal practitioners appearing in person may recover the value of their own legal expertise. The judgment reinforces the limited grounds for interfering with an arbitrator's discretion in awarding compensation and the holistic approach required when assessing what is just and equitable in the circumstances.