Burman Katz Attorneys v Brand NO and Others (P565/00, P581/00) [2000] ZALC 130; [2001] 2 BLLR 125 (LC); (2001) 22 ILJ 128 (LC) (16 November 2000)

Burman Katz Attorneys v Brand NO and Others (P565/00, P581/00) [2000] ZALC 130; [2001] 2 BLLR 125 (LC); (2001) 22 ILJ 128 (LC) (16 November 2000)

The court held that the contracts of employment did not automatically terminate upon dissolution of the partnership except in the case of death. The evidence showed that the new employers took over the contracts of employment with the employees' consent, and the periods of employment with dissolved partnerships should be recognised as continuous service. Section 41(2) of the BCEA applies prospectively from 11 November 1996, and severance pay must be calculated from that date. The Commissioner had jurisdiction to arbitrate the dispute as the central issue was entitlement to severance pay, and consideration of other statutory provisions was incidental. The dissolution of the partnership and...

Citation
[2000] ZALC 130
Parties
Applicant: Burman Katz Attorneys; Respondent: Mr Floors Brand NO; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Johanna Elizabeth Watson; Respondent: Josephine Greenblatt
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
16 November 2000
Case Number
P565/00, P581/00
Procedural Posture
Review Application / Judgment
Outcome
Paragraph 2 of the award of the 1st Respondent is reviewed and set aside and replaced. Mrs Greenblatt is entitled to severance pay calculated as though she had been employed since 11 November 1996. The amended award is made an order of court. No order as to costs.
Judges
Landman
Legal Topics
Severance Pay, Transfer of Business as Going Concern, Retrospective Application of Statute, Employment Continuity, Jurisdiction of Ccma
Labour Law Civil Procedure Severance Pay Transfer of Business as Going Concern Retrospective Application of Statute Employment Continuity Jurisdiction of Ccma

Case Brief

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Parties

Burman Katz Attorneys

Applicant

Mr Floors Brand NO

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Johanna Elizabeth Watson

Respondent

Josephine Greenblatt

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the contracts of employment of the grievants terminated upon dissolution of the partnership or were capable of transfer.
  2. 2 Whether section 41(2) of the Basic Conditions of Employment Act operates retrospectively.
  3. 3 Whether the Commissioner had jurisdiction to arbitrate the dispute regarding severance pay.

Ratio Decidendi

The court held that the contracts of employment did not automatically terminate upon dissolution of the partnership except in the case of death. The evidence showed that the new employers took over the contracts of employment with the employees' consent, and the periods of employment with dissolved partnerships should be recognised as continuous service. Section 41(2) of the BCEA applies prospectively from 11 November 1996, and severance pay must be calculated from that date. The Commissioner had jurisdiction to arbitrate the dispute as the central issue was entitlement to severance pay, and consideration of other statutory provisions was incidental. The dissolution of the partnership and...

Court Disposition

Paragraph 2 of the award of the 1st Respondent is reviewed and set aside and replaced. Mrs Greenblatt is entitled to severance pay calculated as though she had been employed since 11 November 1996. The amended award is made an order of court. No order as to costs.

Orders

  • Paragraph 2 of the award of the 1st Respondent is reviewed and set aside and replaced by: 'Applicant, Mrs Greenblatt is entitled to severance pay calculated as though she had been employed since 11 November 1996.'
  • The award as amended is made an order of court.