Viney v Barnard Jacobs Mellet Securities (JS14/05) [2007] ZALC 102; (2008) 29 ILJ 1564 (LC) (20 December 2007)

Viney v Barnard Jacobs Mellet Securities (JS14/05) [2007] ZALC 102; (2008) 29 ILJ 1564 (LC) (20 December 2007)

The court found that the applicant's dismissal was causally connected to the transfer of the business as a going concern under section 197 of the LRA. The retrenchment decision was made three weeks after the merger became unconditional, and the stated reason for the dismissal was overstaffing resulting from the merger. The respondent failed to discharge its onus to prove that the dismissal was for a fair reason unrelated to the transfer. The court applied the two-stage test of factual and legal causation and concluded that, but for the transfer, the retrenchment would not have occurred. The applicant's treatment during the process further aggravated the unfairness. The dismissal was...

Citation
[2007] ZALC 102
Parties
Applicant: John Viney; Respondent: Barnard Jacobs Mellet Securities (Pty) Ltd
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
20 December 2007
Case Number
JS 14/05
Procedural Posture
Automatic Unfair Dismissal / Trial
Outcome
The applicant's dismissal was declared automatically unfair under section 187(1)(g) of the LRA. The respondent was ordered to pay the applicant compensation equivalent to 18 months' remuneration at his rate of pay at the date of dismissal. Costs were awarded in favour of the applicant.
Judges
Molahlehi
Legal Topics
Automatic Unfair Dismissal, Transfer as Going Concern, Section 197 Lra, Section 187 Lra, Compensation for Unfair Dismissal
Labour Law Automatic Unfair Dismissal Transfer as Going Concern Section 197 Lra Section 187 Lra Compensation for Unfair Dismissal

Case Brief

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Parties

John Viney

Applicant

Barnard Jacobs Mellet Securities (Pty) Ltd

Respondent

Procedural Posture

Automatic Unfair Dismissal / Trial

Legal Issues

  1. 1 Was the applicant's dismissal automatically unfair as a result of a transfer as a going concern under section 197 of the LRA, contravening section 187(1)(g)?
  2. 2 Alternatively, was the dismissal substantively and procedurally unfair under section 189 of the LRA?
  3. 3 What is the appropriate compensation for the applicant if the dismissal is found to be automatically unfair?

Ratio Decidendi

The court found that the applicant's dismissal was causally connected to the transfer of the business as a going concern under section 197 of the LRA. The retrenchment decision was made three weeks after the merger became unconditional, and the stated reason for the dismissal was overstaffing resulting from the merger. The respondent failed to discharge its onus to prove that the dismissal was for a fair reason unrelated to the transfer. The court applied the two-stage test of factual and legal causation and concluded that, but for the transfer, the retrenchment would not have occurred. The applicant's treatment during the process further aggravated the unfairness. The dismissal was...

Court Disposition

The applicant's dismissal was declared automatically unfair under section 187(1)(g) of the LRA. The respondent was ordered to pay the applicant compensation equivalent to 18 months' remuneration at his rate of pay at the date of dismissal. Costs were awarded in favour of the applicant.

Orders

  • The dismissal of the applicant on 31 May 2004 is declared automatically unfair under section 187(1)(g) of the LRA.
  • The respondent is ordered to pay the applicant compensation equivalent to 18 months' remuneration at the applicant's rate of remuneration at the date of dismissal.