Fernandes v Lezmin 1081 CC T/A Jazztime Cafe (JS 913/05) [2007] ZALC 79; (2008) 29 ILJ 662 (LC) (2 November 2007)

Fernandes v Lezmin 1081 CC T/A Jazztime Cafe (JS 913/05) [2007] ZALC 79; (2008) 29 ILJ 662 (LC) (2 November 2007)

The court found that the applicant was dismissed as a direct result of the transfer of Jazztime Cafe as a going concern. The evidence established that the applicant was an employee at the time of the transfer and that her dismissal was not based on any agreement excluding her from the operation of section 197. The respondent failed to prove that the applicant was not an employee or that her dismissal was unrelated to the transfer. Accordingly, the dismissal was automatically unfair under section 187(1)(g) of the Labour Relations Act. The applicant was entitled to compensation equivalent to 24 months' remuneration, as she did not seek reinstatement and the circumstances justified the...

Citation
[2007] ZALC 79
Parties
Applicant: Lynette Fernandes; Respondent: Lezmin 1081 CC T/A Jazztime Cafe
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
2 November 2007
Case Number
JS 913/05
Procedural Posture
Labour Unfair Dismissal / Trial
Outcome
The applicant's dismissal was declared automatically unfair. The respondent was ordered to pay the applicant compensation equivalent to 24 months' salary and costs.
Judges
Molahlehi
Legal Topics
Automatically Unfair Dismissal, Transfer of Business as Going Concern, Section 197 Lra, Section 187 Lra, Compensation for Unfair Dismissal
Labour Law Automatically Unfair Dismissal Transfer of Business as Going Concern Section 197 Lra Section 187 Lra Compensation for Unfair Dismissal

Case Brief

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Parties

Lynette Fernandes

Applicant

Lezmin 1081 CC T/A Jazztime Cafe

Respondent

Procedural Posture

Labour Unfair Dismissal / Trial

Legal Issues

  1. 1 Was the applicant dismissed as a result of the transfer of the business as a going concern, rendering the dismissal automatically unfair under section 187(1)(g) of the Labour Relations Act?
  2. 2 Was the applicant an employee at the time of the transfer and dismissal?
  3. 3 Is the applicant entitled to compensation for automatically unfair dismissal?

Ratio Decidendi

The court found that the applicant was dismissed as a direct result of the transfer of Jazztime Cafe as a going concern. The evidence established that the applicant was an employee at the time of the transfer and that her dismissal was not based on any agreement excluding her from the operation of section 197. The respondent failed to prove that the applicant was not an employee or that her dismissal was unrelated to the transfer. Accordingly, the dismissal was automatically unfair under section 187(1)(g) of the Labour Relations Act. The applicant was entitled to compensation equivalent to 24 months' remuneration, as she did not seek reinstatement and the circumstances justified the...

Court Disposition

The applicant's dismissal was declared automatically unfair. The respondent was ordered to pay the applicant compensation equivalent to 24 months' salary and costs.

Orders

  • The dismissal of the applicant was automatically unfair.
  • The respondent must compensate the applicant for 24 months, calculated at R13,000 per month.