van Der Velde v Business and Design Software (Pty) Ltd and Another (JS371/03) [2005] ZALC 97; [2006] 10 BLLR 995 (LC); (2006) 27 ILJ 1225 (LC) (18 November 2005)

van Der Velde v Business and Design Software (Pty) Ltd and Another (JS371/03) [2005] ZALC 97; [2006] 10 BLLR 995 (LC); (2006) 27 ILJ 1225 (LC) (18 November 2005)

The Court held that for the purposes of section 197 of the Labour Relations Act, the transfer of the business from Business and Design Software (B&DS) to National Golf Network (NGN) occurred no earlier than 4 April 2003, the date on which the suspensive conditions of the sale agreement were fulfilled and NGN assumed full control of the business. The Court rejected the notion that the employer parties could unilaterally fix a retrospective effective date for the transfer that would bind affected employees. The determination of the transfer date must be objective, based on when the transferee actually assumes control and responsibility for the business. As a result, on the date of the...

Citation
[2005] ZALC 97
Parties
Applicant: E.C. van Der Velde; Respondent: Business and Design Software (Pty) Ltd; Respondent: National Golf Network (Pty) Ltd
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
18 November 2005
Case Number
JS371/03
Procedural Posture
Civil Trial / Preliminary Point in Limine Ruling
Outcome
Preliminary ruling: Both Respondents are properly before the Court for the determination of the merits of the Applicant's claim. The matter will proceed on the agreed dates.
Judges
A van Niekerk
Legal Topics
Transfer of Business, Section 197 Lra, Automatic Unfair Dismissal, Joint and Several Liability, Suspensive Conditions, Effective Date of Transfer
Labour Law Transfer of Business Section 197 Lra Automatic Unfair Dismissal Joint and Several Liability Suspensive Conditions Effective Date of Transfer

Case Brief

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Parties

E.C. van Der Velde

Applicant

Business and Design Software (Pty) Ltd

Respondent

National Golf Network (Pty) Ltd

Respondent

Procedural Posture

Civil Trial / Preliminary Point in Limine Ruling

Legal Issues

  1. 1 What is the effective date of transfer of a business for the purposes of section 197 of the Labour Relations Act when the agreement provides for a transfer date preceding the fulfilment of suspensive conditions and signature of the agreement.
  2. 2 Who was the Applicant's employer at the time of his dismissal for purposes of liability under section 197.
  3. 3 Whether the employer parties can unilaterally determine the date on which section 197 is triggered.

Ratio Decidendi

The Court held that for the purposes of section 197 of the Labour Relations Act, the transfer of the business from Business and Design Software (B&DS) to National Golf Network (NGN) occurred no earlier than 4 April 2003, the date on which the suspensive conditions of the sale agreement were fulfilled and NGN assumed full control of the business. The Court rejected the notion that the employer parties could unilaterally fix a retrospective effective date for the transfer that would bind affected employees. The determination of the transfer date must be objective, based on when the transferee actually assumes control and responsibility for the business. As a result, on the date of the...

Court Disposition

Preliminary ruling: Both Respondents are properly before the Court for the determination of the merits of the Applicant's claim. The matter will proceed on the agreed dates.

Orders

  • The effective date of transfer for the purposes of section 197 of the Labour Relations Act is 4 April 2003, being the date on which the suspensive conditions of the sale agreement were fulfilled and NGN assumed control of the business.
  • Both Respondents are to remain parties to the proceedings to determine the merits of the Applicant's claim.