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Thread: Need some advice on a ccma case please.

  1. #1
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    Exclamation Need some advice on a ccma case please.

    Hi. Quick rundown: my inlaws (oldish people) owned 2 shops. A guy says he want to buy shop 1. They give him the oppertunity to run the shop to see if he is interested, if he is ready hell make them an offer (knowing the original purchase price of the shop, and stating he is waiting for his money to clear soon). In the meantime my inlaws decide to cover their bases, and employee him legally. After a period of time, around 7 months, he makes an offer for the shop, lowballing by around half (he never wanted to buy in the first place, well get to that). My inlaws decide to sell shop 2 since shop 1 is easier to run, and 2 is too much to run for them, even though it is small coastel shops. Shop 2 gets sold, and they decide to downscale and ask this person to leave, seeing he has no interest in buying the shop, and they cant afford him anyway. They give him a severence package for the few months he was there.

    The second shop that was supposed to be sold doesnt happen on the exact date, and they need to manage it for a few more weeks, so they get a casual worker in for 30 days to run shop 1 where they retrenched this guy. They could not ask him, since he opened a similar shop selling the EXACT same product in the SAME complex as them 2 shops down (as i said, I think he was just learning the business and not intending to buy at all).

    He, instead of talking to them, runs to the CCMA and opens a complaint, stating that they should have asked him to work there for that period, since he was retrenched. All the paperwork is in order on our side, the CCMA case is tomorrow, just want to make sure I covered all my bases. Already spoke to a guy in the DOL and he said all the paperwork and the case is in order. I also want to know, if I can return the favour to this guy and sue him for damages or something?
    IJS Installations
    Electrical, Residential Gas and Electric fencing.

  2. #2
    Gold Member IMHO's Avatar
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    Well, sound like you have a good case. I am impressed by the oldish people who had the foresight to employ him legally and that they retrenched him properly. If that paperwork as well as the buy offer for the shop and the fact that the sale fell through, paperwork is all there, then I can not see you having a problem.

    Can you prove he bought or started his shop under his own name? He might pretend he is a casual there.

    I hope you can nail this guy on other avenues, like you mention. He deserves to be punished.

    I am no expert, so hope the guys come give their insight.
    ~Expenses will eat you alive! - My first Boss~

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    Jacques#1 (27-Nov-13)

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    Diamond Member adrianh's Avatar
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    I think that the entire story about shop 1 and 2 etc. is irrelevant to the issue at hand.

    He was employed for 7 months in a particular position.
    Then retrenched from a position because the business was scaling down.
    He opened a similar store 2 shops down.
    The scaling down didn't occur for what ever reason.
    He was not contacted because he had already opened a business of his own (one could always say that you really wanted to contact him but he seemed to have his hands full with his new business)
    You employed a temp to fill his position.

    I think that the thing that is most important is going to be the timeline - he is going to say that they just wanted to get rid of him knowing that they were going to replace him with a temp.
    You are going to say that you guys were planning to scale down the operation as you say but because you were unable to, and he was already running his own business, you were forced to make another plan.
    How easily someone is offended is directly proportional to how stupid they are.
    ~GS Elevator

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    Jacques#1 (27-Nov-13)

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    My inlaws literally only had the temp in there for 30 days, they have already thanked the person for standing in, and have been running the shop themselves for the last three weeks, so there is "real" proof, that the person was only asked to stand in. I am just scared, that this being a very small coastal town as I said, he's been living there his whole life, and knows everyone, does he know the chairperson? Ive been to the CCMA a few times, in a previous job as the employer, and never lost a case, so I don't know certain things (never had to...). Can a employer appeal a CCMA decision, if the CCMA find in his favour (which I seriously doubt...however, as I said, he may lie through his teeth, get witnesses to lie for him or just know the right people). On a personal note, these are two pensioners that opened a shop to do something in their retirement and not stop working and go sit and die (max profit a mere R5000 per month on the shop), now they have to face rubbish like this!!
    IJS Installations
    Electrical, Residential Gas and Electric fencing.

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    Platinum Member sterne.law@gmail.com's Avatar
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    An employer can't appeal jt can take on review (for simplicity, a similar process.)
    Regarding the case
    There was an employee,
    Who was entrenched.
    It is ordinarily a norm, to include in retrenchment proceedings a term 're future employment. It is NOT required y law. It's in the code of good practice
    If there is such a term, then the failure to offer job/or offer opportunity to apply (it is not given the person MUST get the job ) constitutes an unfair labour practice in terms of 186(2)(c) and must be referred as such.
    Given your post, it sounds as if the claim is the failure to 're employ. With or without agreement it falls to the ULP.
    Alternatively, the application is for an unfair retrenchment, in terms of s 188. This is based on reason being unfair or the procedure.
    Based on the facts in post, the reason is fair. 're the procedure, given he was only employee then obviously procedure is simplified
    Given he was there less than a year, there was no obligation for severance. (One week per completed year.)
    Whether there was any agreement signed on termination is unclear.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

  8. Thank given for this post:

    Jacques#1 (27-Nov-13), Vanash Naick (28-Nov-13)

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    They never had a clause in the retrenchment letter that states re-employement in any type or form. They also gave him 2.5 months notice when the proceedings started to sell the other shop, and 2 weeks severence pay (I think, or they paid him a full month). This guy is after money, he wants money, if they offer to re-employ him he WILL refuse, since he has his own shop now. Why was he even allowed to approach the CCMA? I thought you have to show that you did initiate meetings with the employer/appeals before they accept your case anyway?
    IJS Installations
    Electrical, Residential Gas and Electric fencing.

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    I will fly down and fight this thing to the bitter end if it does go that way, they did everything right. But what is worst case in this matter? I believe his main complaint is the 1 month that he did not work there, while he was setting uo his own shop anyway.
    IJS Installations
    Electrical, Residential Gas and Electric fencing.

  11. #8
    Platinum Member sterne.law@gmail.com's Avatar
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    The casual worked for 30 days.
    When was the complaint made?
    What I'm getting at is the time periods.
    He would have known about the employee within days, hence his time started running.

    Given the 2.5 month notice and severance, he got more than a fair shake.
    Even if he did win, this extra payment would be taken into account when calculating award. I would be inclined to say, ok 1 month award, you allready got 2.5 mth, thanks for playing.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Jacques#1 (27-Nov-13)

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    Excellent, thanks sir!! He doesnt even have a crutch to stand on if thats the case. The complaint was made after he opened his own shop, and only about at the end of the casual workers assistance in the shop.
    IJS Installations
    Electrical, Residential Gas and Electric fencing.

  14. #10
    Platinum Member sterne.law@gmail.com's Avatar
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    They must raise the point of time and that the applicant did not apply for condonation, so no jurisdiction.
    The commissioner may ask if parties want to try settle, throw R5 coin on the table and tell him to take it or leave it. Ha ha
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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