+27 680 77 9615
280 Oak Avenue, Randburg, Johannesburg, ZA
, +27 680 77 9615
280 Oak Avenue, Randburg, Johannesburg, ZA
QUESTION 1
Themba, who was a manager of the Men’s Club, approached the Commission
for Conciliation, Mediation and Arbitration (the CCMA) seeking severance pay
after he was retrenched. The trade union that he belongs to was informed that
he was not employed by the Men’s Club, but that he was in fact employed by a
company named Bad Boys (Pty) Ltd. The trade union duly cited Bad Boys (Pty)
Ltd as the respondent in a referral to the CCMA. The sole director and
shareholder of Bad Boys (Pty) Ltd, Tendai Munyai, during conciliation indicated
that the Men’s Club was insolvent and that Themba had been dismissed for
operational reasons. The commissioner advised Themba to refer an unfair
dismissal dispute. When the matter was referred for arbitration, both the Men’s
Club and Bad Boys (Pty) Ltd were cited as respondents. After hearing the matter,
the commissioner ordered Bad Boys (Pty) Ltd to pay Themba an amount of R250
000 for his unfair dismissal. However, it was discovered that Bad Boys (Pty) Ltd
had no assets. In fact, Tendai Munyai who also participated in the running of the
business had provided financial assistance to Bad Boys (Pty) Ltd and he had
secured claims against the company for repayment of the loan amounts.
Themba intends to seek an order from the Labour Court to the effect that Tendai
Munyai was his true employer and that he must pay him the amount of R250 000.
With reference to the relevant legislation and case law, indicate what Themba
would have to prove in order to hold Tendai Munyai liable. (20)
To hold Tendai Munyai liable for his unfair dismissal, Themba would have to establish
that Tendai Munyai was his true employer and that he acted unlawfully in dismissing
him. This would require a consideration of the relevant legislation and case law,
including the control test and the economic reality test, as well as any other relevant
factors such as the procedural and substantive fairness of the dismissal.
In addition, section 65 of the Close Corporations Act of 1984 may be relevant to this
matter. This section provides that a member of a close corporation may be held liable
280 Oak Avenue, Randburg, Johannesburg, ZA
, +27 680 77 9615
280 Oak Avenue, Randburg, Johannesburg, ZA
QUESTION 1
Themba, who was a manager of the Men’s Club, approached the Commission
for Conciliation, Mediation and Arbitration (the CCMA) seeking severance pay
after he was retrenched. The trade union that he belongs to was informed that
he was not employed by the Men’s Club, but that he was in fact employed by a
company named Bad Boys (Pty) Ltd. The trade union duly cited Bad Boys (Pty)
Ltd as the respondent in a referral to the CCMA. The sole director and
shareholder of Bad Boys (Pty) Ltd, Tendai Munyai, during conciliation indicated
that the Men’s Club was insolvent and that Themba had been dismissed for
operational reasons. The commissioner advised Themba to refer an unfair
dismissal dispute. When the matter was referred for arbitration, both the Men’s
Club and Bad Boys (Pty) Ltd were cited as respondents. After hearing the matter,
the commissioner ordered Bad Boys (Pty) Ltd to pay Themba an amount of R250
000 for his unfair dismissal. However, it was discovered that Bad Boys (Pty) Ltd
had no assets. In fact, Tendai Munyai who also participated in the running of the
business had provided financial assistance to Bad Boys (Pty) Ltd and he had
secured claims against the company for repayment of the loan amounts.
Themba intends to seek an order from the Labour Court to the effect that Tendai
Munyai was his true employer and that he must pay him the amount of R250 000.
With reference to the relevant legislation and case law, indicate what Themba
would have to prove in order to hold Tendai Munyai liable. (20)
To hold Tendai Munyai liable for his unfair dismissal, Themba would have to establish
that Tendai Munyai was his true employer and that he acted unlawfully in dismissing
him. This would require a consideration of the relevant legislation and case law,
including the control test and the economic reality test, as well as any other relevant
factors such as the procedural and substantive fairness of the dismissal.
In addition, section 65 of the Close Corporations Act of 1984 may be relevant to this
matter. This section provides that a member of a close corporation may be held liable
