Employers cannot hide from the law

By Ivan Israelstam, chief executive of Labour Law Management Consulting

It is not illegal for a business person to own more than one business or to close down one business and open another. However, carrying out such a practice for purposes of evading labour law obligations may not work.

For example, it can happen that an employer loses a CCMA case in which the employer is ordered to pay compensation to the employee. The employer might then choose to close its business in order to avoid having to pay the compensation. However, especially where the employer then opens the same business under a different name and/or in a different place, the new business could be found liable for the compensation payment award made against the old business.

The new business might be registered as a separate company or close corporation to the old one which would normally, in terms of the Companies Act, protect it from liability for any legal obligations of any other entity. However, arbitrators at the CCMA and bargaining councils as well as judges in the Labour Court may be willing to ignore this corporate protection where they deem it appropriate. This practice of ignoring the Companies Act protection is known as ‘piercing the corporate veil’ because it breaks through the protective shield behind which the employer is hiding. This the courts and arbitrators might do where:

· They believe that the employer is purposely switching businesses in order to evade labour law compliance

· There is a clear and close connection between the old and new business

· The employee could lose out if the corporate veil is not pierced.

For example, in the case of Marllier vs G7 Technologies cc & Another (2004, 4 BALR 480) the employer retrenched its production manager while the owners of the employer were still running other similar profitable businesses. The CCMA found that:

· The first cc had not been closed down for genuine operational reasons but rather for the convenience of the owners

· One of the owners had left and the other two had decided to run the business through another cc that they owned

· The employer had failed to consult with the employee before retrenching him

· The business of the second cc was so intertwined with that of the first one that they could be regarded as a partnership

· The closeness of the relationship was based on the facts that the two ccs used the same staff members and had common ownership

· Had it not been for the formal separation between the two ccs the employer would have offered the employee a job in the second cc

· The owner’s reliance on the juristic personality of the second cc as a means of avoiding liability for the employee’s retrenchment justified the piercing of the corporate veil

· The dismissal was unfair

· The employer had to pay the employee six months’ remuneration as compensation for the unfairness.

In the light of this decision it is most important for employers to:

· Act cautiously before moving their business operations from one company or cc to another

· Ensure that any such move is carried out for legitimate reasons

· Ensure that the rights of employees will not be unduly prejudiced by the transfer of the business operations

· Avoid misusing the ownership of other companies in order to get rid of employees

Employers must also ensure that when considering retrenchments:

· There are truly no alternatives to the loss of jobs

· Potential retrenches are properly consulted

· The whole process is managed under the guidance of a labour law expert.

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