DISMISSAL FOR NOT INFORMING EMPLOYER OF MOONLIGHTING
Bakenrug Meat (Pty) Ltd ta Joostenberg Meat v CCMA [2021] CA8-2020 (LAC)
Ms Hough was employed as a sales representative by Joostenberg Meat, which produces and then sells a range of meat products. She was dismissed after having been found guilty of a charge of dishonesty because she failed to inform Joostenberg that she operated a business of her own which marketed dried meat products and thus had failed to give full attention to marketing the meat products produced by her employer. The CCMA commissioner found her dismissal substantively fair, but the award was set aside by the Labour Court.
Davis JA discusses the reasoning of the court a quo that the side-business only ran on weekends and hence there was no nexus between her performance for the employer and the running of the side-line business; and the contention by Joostenberg that Ms Hough in her capacity as an employee owed the appellant a duty of good faith, so that anything done by her which was incompatible with her duties as an employee would justify a dismissal.
The court finds that the conclusion reached by the commissioner, that employees act in bad faith if conflict of interest may arise even though no real competition actually results, was unassailable.
The order of the court a quo is set aside and replaced with one dismissing the application to review the arbitration award.
(Waglay JP and Savage AJA concurred.)
DERIVATIVE ACTION AND CLOSE CORPORATIONS
Naidoo v Dube Tradeport Corporation [2022] ZASCA 14
Mr Naidoo and Odora Trading CC, a close corporation, sued Mr Naidoo’s brother and Dube Tradeport to set aside the sale of certain farms by Odora to Dube Tradeport. The brother is the sole registered member of Odora, and accordingly holds the entire member’s interest in it. However, it was alleged in the particulars of claim that Mr Naidoo was the actual beneficial owner of the member’s interest in Odora, and that the brother holds the member’s interest on behalf of Mr Naidoo, and as his nominee. The High Court upheld Dube’s exception to the particulars of claim. The court discussed the Close Corporations Act and common law derivative actions and concluded that Mr Naidoo was not entitled to institute an action on behalf of Odora or in its name.
Makgoka JA discusses the origin and nature of the common law derivative action; the contention by Dube Tradeport that as Mr Naidoo is not a member of Odora, he is excluded from pursuing any legal proceedings on its behalf; s 54 of the Close Corporations Act; the doctrine of constructive notice; whether an alleged beneficial owner of a member’s interest in a close corporation can invoke derivative action on behalf of the close corporation; and the High Court’s failure to apply the established approach in respect of exceptions.
The appeal is upheld with costs and the order of the High Court replaced with one dismissing the exception.
NO-WORK-NO-PAY IN LOCKDOWN AND NOTICE PERIOD
Buys v Oasis Group Holdings [2022] ZALCCT 5
Mr Buys resigned from Oasis on 1 January 2020 and in terms of the contract of employment, he was obliged to give six months’ notice, so his last day of employment was supposed to be on 30 June 2020. His laptop was removed and allocated to another staff member on 26 March 2020 and the country was placed on covid hard lockdown on 27 March 2020. Oasis advised Mr Buys that no-work-no-pay would apply during the lockdown. He was placed on unpaid leave from 1 April 2020 and was not remunerated for the remaining three months of his notice period. The CCMA found that the Mr Buys could not prove that he was dismissed and that absent a dismissal, the CCMA lacked jurisdiction to determine the dispute concerning the notice pay that was not paid.
Rabkin-Naicker J discusses the correspondence between Oasis and Mr Buys; who would be essential staff and the regulations under the Disaster Management Act; whether Oasis was entitled to breach the contract of employment entered into between the parties in the circumstances of the Covid pandemic, and apply the “no work-no-pay” principle; and the cases of Macsteel v NUMSA and Matshazi v Mezepoli Melrose Arch.
Oasis is ordered to pay Mr Buys notice pay for the period April 1 2020 to June 24 2020.
