Van Pletzen v Danmar Autobody West Rand (Pty) Ltd and Another (JS248/11) [2012] ZALCJHB 152 (6 November 2012)

Van Pletzen v Danmar Autobody West Rand (Pty) Ltd and Another (JS248/11) [2012] ZALCJHB 152 (6 November 2012)

The court found that the applicant's dismissal was both procedurally and substantively unfair, and automatically unfair as it was effected solely due to the transfer of the business as a going concern. The old employer failed to follow any fair procedure or provide a lawful operational requirement for termination. The applicant was entitled to compensation, and the amount awarded was determined to be just and equitable, taking into account her financial hardship, emotional distress, lack of consultation, and the period it took her to find comparable employment. The liability for compensation and costs was imposed jointly and severally on both the old and new employers.

Citation
[2012] ZALCJHB 152
Parties
Applicant: Van Pletzen, Chantelle; Respondent: Danmar Autobody West Rand (Pty) Ltd; Respondent: Danmar Autobody West Rand, Division of the Imperial Group (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
6 November 2012
Case Number
JS248/11
Procedural Posture
Automatically Unfair Dismissal / Trial and Judgment
Outcome
The applicant's dismissal was declared both procedurally and substantively unfair, and automatically unfair due to the transfer of the business as a going concern. Compensation and costs were awarded against both respondents jointly and severally.
Judges
Coetzee
Legal Topics
Automatically Unfair Dismissal, Transfer of Business as Going Concern, Section 197 Lra, Compensation, Procedural Fairness, Substantive Fairness
Labour Law Automatically Unfair Dismissal Transfer of Business as Going Concern Section 197 Lra Compensation Procedural Fairness Substantive Fairness

Case Brief

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Parties

Van Pletzen, Chantelle

Applicant

Danmar Autobody West Rand (Pty) Ltd

Respondent

Danmar Autobody West Rand, Division of the Imperial Group (Pty) Ltd

Respondent

Procedural Posture

Automatically Unfair Dismissal / Trial and Judgment

Legal Issues

  1. 1 Was the applicant's dismissal automatically unfair due to the transfer of a business as a going concern under section 197 of the Labour Relations Act?
  2. 2 Was the dismissal both procedurally and substantively unfair?
  3. 3 Is the applicant entitled to compensation and costs, and if so, in what amount?

Ratio Decidendi

The court found that the applicant's dismissal was both procedurally and substantively unfair, and automatically unfair as it was effected solely due to the transfer of the business as a going concern. The old employer failed to follow any fair procedure or provide a lawful operational requirement for termination. The applicant was entitled to compensation, and the amount awarded was determined to be just and equitable, taking into account her financial hardship, emotional distress, lack of consultation, and the period it took her to find comparable employment. The liability for compensation and costs was imposed jointly and severally on both the old and new employers.

Court Disposition

The applicant's dismissal was declared both procedurally and substantively unfair, and automatically unfair due to the transfer of the business as a going concern. Compensation and costs were awarded against both respondents jointly and severally.

Orders

  • The dismissal of the applicant was both procedurally and substantively unfair.
  • The dismissal of the applicant is an automatically unfair dismissal as it was because of a transfer of a business as a going concern.