Bradley Conradie Halton Cheadle

Bradley Conradie and Sarah Burger speak with Chris Steyn at Biznews https://lnkd.in/dscZM3mn

SASLAW Western Cape Chapter Year End Seminar & SASLAW Pro Bono NPC Acknowledgments 2024   The SASLAW WC Chapter hosted the year end seminar at the stunning premises of Norton Rose Fulbright in CT where Professor Alan Rycroft presented an expert discussion on recent case law judgements. Thank you to the Norton Rose Fulbright team for your generous support and commitment to SASLAW.   We were honoured to have the presence of Judge La Grange and Judge Whitcher of the Judiciary in attendance. Judge La Grange personally thanked the attorneys of SASLAW for their time and contributions to assisting clients in need at the Pro Bono office. Thank you to the delegates that attended and extended professional connections.   We wish to thank the following participating firms and attorneys and the Cape Town Labour Court for their commitment and support to the SASLAW Pro Bono NPC Western Cape office.   BAGRAIMS ATTORNEYS Bradley Conradie Halton Cheadle Bowmans (Law Firm) Britney Theron & Associates Cowan-Harper-Madikizela Herold Gie Attorneys Justine Del Monte & Associates Inc Legal Aid South Africa Malcolm Lyons & Brivik Attorneys Inc. South Africa Miles Chennells & Associates Norton Rose Fulbright Pam Melapi Attorneys State Attorney Webber Wentzel Werksmans Attorneys Zikhona Ndlebe Attorneys

Great to see the LAC followed the Constitutional Court judgment in Damons, which I successfully argued in person on behalf of the City of Cape Town. #SASLAW #BCHC

DEDUCTING OVERPAYMENTS FROM EMPLOYEES’ WAGES: WHEN IS IT PERMISSIBLE? Section 34 of the Basic Conditions of Employment Act (BCEA) allows an employer to make deductions from an employee’s salary or wages only if: ·        the employee has agreed in writing to the deduction of a debt, or ·        the deduction is permitted by any law, collective agreement, court order or arbitration award. Section 34(5)(a) adds that any overpayment “resulting from an error in calculating the employee’s remuneration” is a “debt” which can be recovered like any other debt. But what happens if the employee denies it? This question was recently addressed by the Supreme Court of Appeal in Mhlontlo Local Municipality and others v Ngcangula and another. The dispute arose from salary increments paid to employees in terms of a municipal council resolution which was revoked because the municipality concluded that it was irregular. The municipality then set out to recover increments they had already been paid. However, the two applicants (who had each received over R200 000 in increments) disagreed. They claimed that the municipality was breaching section 34 of the BCEA and approached the High Court, which upheld their claim. The municipality then went on appeal. The SCA accepted that the applicants had not consented to the deductions, nor had the deductions been authorised by collective agreement, court order or arbitration award. However, that left the question whether the deductions were permitted by law. The municipality’s position was that the increments had been irregular. The SCA agreed. Moreover, the Labour Appeal Court had also ruled (in a different matter) that the municipality had acted outside its powers and was obliged to seek to recover the monies. The SCA also found that unlawful payments made erroneously over a period of time “cannot give rise to a contractual entitlement” because, if it did, it would “entrench an illegality”. This meant that the deductions were not in breach of contract and the municipality’s appeal was upheld with costs. The net result: the applicants’ attempt to hold on to public monies to which they were not entitled cost them dearly. Darcy du Toit

Job security during mergers, acquisitions and takeovers - by Darcy du Toit https://lnkd.in/dZNqXM43

An employers’ salary obligations - by Darcy du Toit https://lnkd.in/dVctsddu

The wanton waste of unlawful appointments - South Africa continues to count the cost of state capture while the public sector persists in its ongoing struggle to overcome its malignant legacy. One of its most destructive manifestations was an exodus of competent civil servants and their subsequent replacement with corrupt individuals committed to enriching themselves at the expense of the institutions under their control. Read Professor Darcy du Toit's article in last month's Business Day

AN EMPLOYERS' SALARY OBLIGATIONS Proving the existence of an employment relationship can be complicated, as was demonstrated yet again in the recent case of Nieftagodien v Yikusasa Building Contractors (Pty) Ltd [2024] JOL 63745 (LC). Mr Nieftagodien had been employed as a clerk of works (CoW) by MMCC, a company which had been contracted to carry out a project for the Eastern Cape’s Department of Public Works (the DPW). His contract, however, stated that he would report to the DPW’s “principal agent” (MUDA). The reason for this was that a CoW must be completely independent in ensuring that a contract is carried out according to specifications. The problem arose when MMCC ceded its contract with the DPW to the respondent, YBC, which did not recognise Mr Nieftagodien as its employee. However, it continued to serve as a “platform” for the payment of his salary until April 2019, when payments by the DPW came to an end. Mr Nieftagodien’s claim against YBC was for payment of his arrear salary for the final months of the contract on the basis that YBC had taken over as his employer. However, the Labour Court found that there was no employment contract between Mr Nieftagodien and YBC: firstly, MMCC’s cession of the DPW contract to YBC was not a business transfer and, secondly, there was no agreement to transfer Mr Nieftagodien’s employment contract to YBC. In addition, the Court found that YBC did not exercise control over Mr Nieftagodien performance of his role, he was not integrated into YBC’s organisation and he was not economically dependent on YBC. The Court accordingly dismissed Mr Nieftagodien’s claim although he had worked without remuneration for ten months. To whom could he look for payment? Since his contract of employment had not been transferred to YBC, MMCC should remain liable for payment of arrear salary. Enforcing payment, however, would depend on legal and practical factors that were not addressed in the judgment. Darcy du Toit

AN EMPLOYERS' SALARY OBLIGATIONS Proving the existence of an employment relationship can be complicated, as was demonstrated yet again in the recent case of Nieftagodien v Yikusasa Building Contractors (Pty) Ltd [2024] JOL 63745 (LC). Mr Nieftagodien had been employed as a clerk of works (CoW) by MMCC, a company which had been contracted to carry out a project for the Eastern Cape’s Department of Public Works (the DPW). His contract, however, stated that he would report to the DPW’s “principal agent” (MUDA). The reason for this was that a CoW must be completely independent in ensuring that a contract is carried out according to specifications. The problem arose when MMCC ceded its contract with the DPW to the respondent, YBC, which did not recognise Mr Nieftagodien as its employee. However, it continued to serve as a “platform” for the payment of his salary until April 2019, when payments by the DPW came to an end. Mr Nieftagodien’s claim against YBC was for payment of his arrear salary for the final months of the contract on the basis that YBC had taken over as his employer. However, the Labour Court found that there was no employment contract between Mr Nieftagodien and YBC: firstly, MMCC’s cession of the DPW contract to YBC was not a business transfer and, secondly, there was no agreement to transfer Mr Nieftagodien’s employment contract to YBC. In addition, the Court found that YBC did not exercise control over Mr Nieftagodien performance of his role, he was not integrated into YBC’s organisation and he was not economically dependent on YBC. The Court accordingly dismissed Mr Nieftagodien’s claim although he had worked without remuneration for ten months. To whom could he look for payment? Since his contract of employment had not been transferred to YBC, MMCC should remain liable for payment of arrear salary. Enforcing payment, however, would depend on legal and practical factors that were not addressed in the judgment. Darcy du Toit

JOB SECURITY DURING MERGERS, ACQUISITIONS AND TAKEOVERS Section 197 of the Labour Relations Act (LRA) states that, if a business is transferred “as a going concern”, all employees remain employed by the transferee (new employer) on the same terms and conditions as before. What it means was demonstrated in the recent Labour Court case of Motor Industry Staff Association and Stoffberg v Eastvaal Motors (Pty) Ltd. The facts were that Eastvaal Motors (EVA) wanted to acquire the franchises belonging to another dealership (MM) but, since these cannot be bought on their own, it meant acquiring the MM dealership in which they vested. However, to avoid the consequences of section 197, EVA and MM described their contract as a “Sale of Assets Agreement” which covered practically all of MM’s assets. It also stipulated that MM’s business would close down one day before the transfer and EVA would “take over” all employees on the same terms and conditions as before. However, one part-time employee (Ms Stoffberg) was offered a fulltime position but at the same part-time salary; and, since she did not agree to this, EVA dismissed her. Ms Stoffberg then approached the Labour Court under section 187(1)(g) of the LRA, which states that it is automatically unfair to dismiss an employee for a reason related to a business transfer. EVA, however, denied that they had taken over MM’s business as a going concern. The Court disagreed. To determine whether a business is transferred as a going concern, the test is whether after the transfer, it “remains the same but in different hands”. In fact, the assets included in the agreement enabled EVA to continue trading on the very day of transfer. The Court accordingly found that Ms Stoffberg’s dismissal was automatically unfair and awarded her 24 months’ remuneration, plus costs. The lesson: when a business is transferred as a going concern, the application of section 197 can only be avoided by written agreement between the employer(s) and the affected employees (or their union), stipulating any departures from its provisions. Darcy du Toit