Barrier v Paramount Advanced Technologies (Pty) Ltd (JA35/2020) [2021] ZALAC 6; (2021) 42 ILJ 1177 (LAC); [2021] 7 BLLR 643 (LAC) (18 February 2021)

Barrier v Paramount Advanced Technologies (Pty) Ltd (JA35/2020) [2021] ZALAC 6; (2021) 42 ILJ 1177 (LAC); [2021] 7 BLLR 643 (LAC) (18 February 2021)

The Labour Appeal Court held that the appellant's employment with the respondent was uninterrupted from May 1985 until his retrenchment in 2017, and the termination of the written contract at age 65 did not constitute a break in service for the purposes of section 41(2) and section 84(1) of the BCEA. The Court found that there was no time-lapse or break between the periods of employment, and therefore, the entire period must be considered as continuous service. Section 84(2) was found not to apply, as there was no previous period of employment demarcated by a break. Even if retirement benefits had been paid, such payment would not disentitle the appellant from receiving severance pay...

Citation
[2021] ZALAC 6
Parties
Appellant: Patrick Alain Henri Barrier; Respondent: Paramount Advanced Technologies (Pty) Ltd
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
18 February 2021
Case Number
JA35/2020
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment Reviewing and Setting Aside a CCMA Arbitration Award
Outcome
Appeal upheld. The order of the Labour Court is set aside and substituted with dismissal of the review application.
Judges
Davis JA, Coppin JA, Molefe AJA
Legal Topics
Severance Pay, Continuous Service, Basic Conditions of Employment Act, Retirement and Retrenchment, Arbitration Review, Section 41 Bcea
Labour Law Severance Pay Continuous Service Basic Conditions of Employment Act Retirement and Retrenchment Arbitration Review Section 41 Bcea

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Patrick Alain Henri Barrier

Appellant

Paramount Advanced Technologies (Pty) Ltd

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment Reviewing and Setting Aside a CCMA Arbitration Award

Legal Issues

  1. 1 Whether the period of employment prior to the appellant reaching retirement age should be included in the calculation of severance pay upon retrenchment.
  2. 2 Whether the termination of the written employment contract at retirement age constitutes a break in continuous service for severance pay purposes.
  3. 3 Whether payment or entitlement to retirement benefits affects the right to severance pay for the entire period of employment.

Ratio Decidendi

The Labour Appeal Court held that the appellant's employment with the respondent was uninterrupted from May 1985 until his retrenchment in 2017, and the termination of the written contract at age 65 did not constitute a break in service for the purposes of section 41(2) and section 84(1) of the BCEA. The Court found that there was no time-lapse or break between the periods of employment, and therefore, the entire period must be considered as continuous service. Section 84(2) was found not to apply, as there was no previous period of employment demarcated by a break. Even if retirement benefits had been paid, such payment would not disentitle the appellant from receiving severance pay...

Court Disposition

Appeal upheld. The order of the Labour Court is set aside and substituted with dismissal of the review application.

Orders

  • The appeal is upheld.
  • The order of the Labour Court is set aside and substituted with: 'The application to review and set aside the arbitration award of the second respondent dated 28 September 2017 under case number GATW 9153/17 is dismissed.'