SACCAWU and Others v Western Province Sports Club t/a Kelvin Grove Club and Others (C121/08) [2008] ZALCCT 2 (18 April 2008)

SACCAWU and Others v Western Province Sports Club t/a Kelvin Grove Club and Others (C121/08) [2008] ZALCCT 2 (18 April 2008)

The court held that section 197 of the Labour Relations Act does not confer a right to consultation on employees when a business is transferred as a going concern. The reference to section 189(1) in section 197(6) is intended only to identify parties to negotiation if the employers wish to avoid the automatic substitution of the new employer for the old employer. The applicants' reliance on constitutional rights was misplaced, as section 197 is designed to protect employees from unfair dismissal and ensure job security, not to guarantee consultation. The application for an urgent interim interdict was dismissed because the transfer had already occurred, making the relief sought moot. The...

Citation
[2008] ZALCCT 2
Parties
Applicant: SACCAWU; Applicant: Ivan Buntsuntsu; Applicant: Judith Tshikila; Respondent: Western Province Sports Club t/a Kelvin Grove Club; Respondent: The Property Facilities Company (Pty) Ltd
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
18 April 2008
Case Number
C121/08
Procedural Posture
Urgent Application / Application for Urgent Interim Interdict After Transfer of Employment Under S197 LRA
Outcome
Application dismissed with costs.
Judges
Molahlehi
Legal Topics
Section 197 Transfer, Consultation Rights, Urgent Interdict, Constitutional Right to Fair Labour Practice
Labour Law Section 197 Transfer Consultation Rights Urgent Interdict Constitutional Right to Fair Labour Practice

Case Brief

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Parties

SACCAWU

Applicant

Ivan Buntsuntsu

Applicant

Judith Tshikila

Applicant

Western Province Sports Club t/a Kelvin Grove Club

Respondent

The Property Facilities Company (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interim Interdict After Transfer of Employment Under S197 LRA

Legal Issues

  1. 1 Whether employees have a right to consultation prior to transfer of employment under section 197 of the LRA.
  2. 2 Whether failure to consult before transfer constitutes a breach of constitutional rights.
  3. 3 Whether an urgent interim interdict is appropriate after the transfer has already occurred.

Ratio Decidendi

The court held that section 197 of the Labour Relations Act does not confer a right to consultation on employees when a business is transferred as a going concern. The reference to section 189(1) in section 197(6) is intended only to identify parties to negotiation if the employers wish to avoid the automatic substitution of the new employer for the old employer. The applicants' reliance on constitutional rights was misplaced, as section 197 is designed to protect employees from unfair dismissal and ensure job security, not to guarantee consultation. The application for an urgent interim interdict was dismissed because the transfer had already occurred, making the relief sought moot. The...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.