Douglas and Others v Gauteng MEC of Health (JS 736/06) [2008] ZALC 8; [2008] 5 BLLR 401 (LC) ; (2008) 29 ILJ 1499 (LC) (12 February 2008)

Douglas and Others v Gauteng MEC of Health (JS 736/06) [2008] ZALC 8; [2008] 5 BLLR 401 (LC) ; (2008) 29 ILJ 1499 (LC) (12 February 2008)

The Court found that the transfer of the Applicants' employment from GATBA to the Gauteng Department of Health constituted a transfer of a business as a going concern under section 197 of the LRA. The transfer agreement between GATBA and the Department did not meet the requirements of section 197(6), as it was not concluded with the appropriate consulting party representing the employees. Consequently, the Applicants' contracts of employment were automatically transferred to the Department on the same terms and conditions as with GATBA. The Respondent's offer of employment on less favourable terms and the ultimatum to accept or face dismissal amounted to an automatically unfair dismissal...

Citation
[2008] ZALC 8
Parties
Applicant: Ivor John Douglas; Applicant: Johanna Susanna Bekker; Applicant: Susarah Francina Catharina Kruger; Respondent: Gauteng MEC for Health
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
12 February 2008
Case Number
JS 736/06
Procedural Posture
Unfair Dismissal Application / Trial and Judgment
Outcome
The Applicants' dismissals were declared automatically unfair. The Respondent was ordered to pay each Applicant compensation equivalent to 24 months' remuneration at their pre-transfer rate, and to pay the costs of the proceedings. The claim for remuneration for April 2006 was dismissed.
Judges
A Van Niekerk
Legal Topics
Automatic Unfair Dismissal, Transfer of Business, Section 197 Lra, Variation of Employment Terms, Remedies for Unfair Dismissal
Labour Law Automatic Unfair Dismissal Transfer of Business Section 197 Lra Variation of Employment Terms Remedies for Unfair Dismissal

Case Brief

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Parties

Ivor John Douglas

Applicant

Johanna Susanna Bekker

Applicant

Susarah Francina Catharina Kruger

Applicant

Gauteng MEC for Health

Respondent

Procedural Posture

Unfair Dismissal Application / Trial and Judgment

Legal Issues

  1. 1 Whether the transfer of the Applicants' employment from GATBA to the Gauteng Department of Health triggered section 197 of the Labour Relations Act.
  2. 2 Whether the transfer agreement between GATBA and the Gauteng Department of Health constituted a valid agreement under section 197(6) of the LRA.
  3. 3 Whether the Applicants were dismissed by the Gauteng Department of Health and, if so, whether the dismissal was automatically unfair under section 187(1) of the LRA.

Ratio Decidendi

The Court found that the transfer of the Applicants' employment from GATBA to the Gauteng Department of Health constituted a transfer of a business as a going concern under section 197 of the LRA. The transfer agreement between GATBA and the Department did not meet the requirements of section 197(6), as it was not concluded with the appropriate consulting party representing the employees. Consequently, the Applicants' contracts of employment were automatically transferred to the Department on the same terms and conditions as with GATBA. The Respondent's offer of employment on less favourable terms and the ultimatum to accept or face dismissal amounted to an automatically unfair dismissal...

Court Disposition

The Applicants' dismissals were declared automatically unfair. The Respondent was ordered to pay each Applicant compensation equivalent to 24 months' remuneration at their pre-transfer rate, and to pay the costs of the proceedings. The claim for remuneration for April 2006 was dismissed.

Orders

  • The dismissal of each of the Applicants was automatically unfair.
  • The Respondent is ordered, within 14 days from the date of this order, to pay each of the Applicants an amount equivalent to 24 months’ remuneration, calculated at the rate of remuneration paid to them by GATBA as at 31 March 2006.