Vermaak and Another v Sea Spirit Trading 162 CC t/a Paledi Super Spar and Others (JS964/2015) [2017] ZALCJHB 34; (2017) 38 ILJ 1411 (LC) (31 January 2017)

Vermaak and Another v Sea Spirit Trading 162 CC t/a Paledi Super Spar and Others (JS964/2015) [2017] ZALCJHB 34; (2017) 38 ILJ 1411 (LC) (31 January 2017)

The court found that Spar's perfection of the notarial bond and subsequent control and operation of Paledi Super Spar and Paledi Tops constituted a transfer of business as a going concern under section 197 of the LRA. The applicants were employees at the time of transfer and, by operation of law, became Spar's employees. Spar failed to offer employment on terms not less favourable than those previously enjoyed, instead offering fixed-term contracts at significantly reduced remuneration. When the applicants rejected these contracts, Spar dismissed them. The court held that the dismissals were causally connected to the transfer and thus automatically unfair under section 187(1)(g) read with...

Citation
[2017] ZALCJHB 34
Parties
Applicant: Cornelius Marthinus Vermaak; Applicant: Marlene Daphne Vermaak; Respondent: Sea Spirit Trading 162 CC t/a Paledi Super Spar; Respondent: Greenville Trading 543 CC t/a Paledi Tops; Respondent: The Spar Group Limited t/a Paledi Super Spar
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
31 January 2017
Case Number
JS964/2015
Procedural Posture
Automatic Unfair Dismissal / Trial and Judgment
Outcome
Applicants' dismissals were automatically unfair under section 187(1)(g) read with section 197 of the LRA. Compensation and statutory monies awarded. Costs awarded against respondents.
Judges
Prinsloo
Legal Topics
Automatic Unfair Dismissal, Section 197 Transfer, Remuneration Claims, Compensation, Notice Pay, Leave Pay
Labour Law Civil Procedure Automatic Unfair Dismissal Section 197 Transfer Remuneration Claims Compensation Notice Pay Leave Pay

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Parties

Cornelius Marthinus Vermaak

Applicant

Marlene Daphne Vermaak

Applicant

Sea Spirit Trading 162 CC t/a Paledi Super Spar

Respondent

Greenville Trading 543 CC t/a Paledi Tops

Respondent

The Spar Group Limited t/a Paledi Super Spar

Respondent

Procedural Posture

Automatic Unfair Dismissal / Trial and Judgment

Legal Issues

  1. 1 Does the perfection of a notarial bond and taking possession of movable property to realise a debt constitute a transfer of a business as a going concern under section 197 of the LRA?
  2. 2 Were the applicants employees of Paledi Super Spar and Paledi Tops at the time of the alleged transfer?
  3. 3 Did Spar dismiss the applicants after the transfer?

Ratio Decidendi

The court found that Spar's perfection of the notarial bond and subsequent control and operation of Paledi Super Spar and Paledi Tops constituted a transfer of business as a going concern under section 197 of the LRA. The applicants were employees at the time of transfer and, by operation of law, became Spar's employees. Spar failed to offer employment on terms not less favourable than those previously enjoyed, instead offering fixed-term contracts at significantly reduced remuneration. When the applicants rejected these contracts, Spar dismissed them. The court held that the dismissals were causally connected to the transfer and thus automatically unfair under section 187(1)(g) read with...

Court Disposition

Applicants' dismissals were automatically unfair under section 187(1)(g) read with section 197 of the LRA. Compensation and statutory monies awarded. Costs awarded against respondents.

Orders

  • The applicants' dismissal is declared automatically unfair.
  • First applicant awarded compensation equivalent to twelve months' salary at R 70,000 per month (R 840,000).