Urgent advice please flyby night employer

[Clayton Miller]

Good day



I am hoping someone may be able to give some advice on a matter. My neighbor just informed me that she has been working for a small cash only company for two years at 45 hours a per week and has been getting paid cash in hand each week. She would have to work public holidays at normal pay rate and if she took off on public holiday he would not pay her for that day. Her boss had never registered her for uif or paye and in fact she has discovered that the company itself has never been registered with CIPC as a company so it seems the whole company is a flyby night set-up. Last week her boss informed her he is closing down the company and that she should find a new job.



However what my neighbor has discovered is that her boss is in fact giving everything over to his wife and that the wife has now registered legally with CIPC brand new company name as if a brand new business has started.



The questions my neighbor has is as follows:

1. Since her boss never registered her for uif and paye what recourse does she have?

2. How would she go about applying for uif?

3. Since her boss never registered the company so it was never a company how would she go about forcing him to pay her for the public holidays he got her to work at normal hourly rate?

4. She has questioned him about it and her told her he does not have any money and was never an employee because she never got a pay slip. What recourse would she have?

5. Her bosses wife has registered and all legal with a new company name so would my neighbor have any recourse or claim against her bosses wife or her new legal company since although the name is changed and is now legal it will be trading out of the same rented building but with a different owner and different company name?



Sorry this post is so long winded but my neighbor is a 54 year old lady with very little chance of finding new employment at her age. I would like to help her with some legal advice and would appreciate any feed back provided.



Regards

Clayton

[sterne.law@gmail.com]

The absence of a payslip does not mean a person is not an employed.
You cant claim UIF if employer has not paid, but, what happens is that UIF opens a case against employer for breaking the law.

The non registered company could be because he was a sole prop. The plus side of this is that any succesful claim can be collected against personal assets.
The corporate veil can be pierced, that is, for an example, if you won a case against him, and he has no assets, the claim can be brought against the new company as it could be viewed as the same company with a different name.

[Clayton Miller]

Thank you so much for your reply. I am sure my neighbor is going to be pleased to hear this info but unhappy that she can't claim uif. Am I understanding correctly when you say she can claim against the new company her bosses wife with has started even though it is a different owner and company name?

The absence of a payslip does not mean a person is not an employed.
You cant claim UIF if employer has not paid, but, what happens is that UIF opens a case against employer for breaking the law.

The non registered company could be because he was a sole prop. The plus side of this is that any succesful claim can be collected against personal assets.
The corporate veil can be pierced, that is, for an example, if you won a case against him, and he has no assets, the claim can be brought against the new company as it could be viewed as the same company with a different name.

[Greig Whitton]

1. Since her boss never registered her for uif and paye what recourse does she have?

Failing to register her for UIF and PAYE (assuming he was required to do so) constitutes unfair and unlawful labour practices. Her recourse is to approach the CCMA.

2. How would she go about applying for uif?

I don't know whether she can apply retrospectively or not (I assume she can't), however, the CCMA ought to advise and assist with this as well.

3. Since her boss never registered the company so it was never a company how would she go about forcing him to pay her for the public holidays he got her to work at normal hourly rate?

Again, CCMA. The obvious challenge, though, is proving that she actually worked those days (especially if he denies that he ever employed her in the first place).

4. She has questioned him about it and her told her he does not have any money and was never an employee because she never got a pay slip. What recourse would she have?

Legally, she was an employee - it doesn't matter whether she received pay slips, or even whether there was a documented employment contract. Her recourse (yet again) is to approach the CCMA. Unfortunately, as with question 3, she faces the challenge of proving that she actually worked for him. If she was always paid in cash, then there won't be a money trail. Hopefully she has some evidence of her work (e.g. emails; business documents; testimony from customers or other employees).

5. Her bosses wife has registered and all legal with a new company name so would my neighbor have any recourse or claim against her bosses wife or her new legal company since although the name is changed and is now legal it will be trading out of the same rented building but with a different owner and different company name?

If her boss has transferred his business to his wife as a going concern, then his wife's new company will inherit all of the employment obligations and labour liabilities that her husband's business incurred. That means that your neighbour, legally, is employed by the new company.

If her boss closed down his business and his wife his started up a completely new business, then the new business would not inherit the employment contracts of the old business. However, her boss would be legally required to complete proper retrenchment proceedings. Assuming he doesn't, he will be committing an unfair and unlawful labour practice, and your neighbour can take him to the CCMA for recourse.

Long story short: tell your neighbour to go to the CCMA and, hopefully, she has some evidence of her employment.

[Clayton Miller]

Thanks so much for your replies Sterne and Greig, your feed back is much appreciated.

From what I have understood from my neighbor, is that her boss had started the business some five years ago but she only started work there two years ago and in that time he had merely given her weekly pay in cash in an envelope and on a few occasions had made eft payments into her account but that the eft payments had come from his personal account and not the business. Apparently the guy has never had a bank account in the company name and was never registered and had never deducted uif or paye. She tells me his a plumber who works on a cash only basis.

She tells me he had given all stock he had over to his wife who was previously a house wife and he is going to work for a big plumbers company and therefore told her she needs to find another job. The wife has registered as a new business with new name and is taking on her family members to help her with it. I guess that proof she has that he did employ her is the few eft payments he made into her account but then again like she says it was not in the company name. I foresee this lady having a hard time getting anything out of her boss and an even harder time claiming from his wife. I suppose times are becoming tough for small business owners but to just tell someone to find a new job without a package of some sort is just not right.

Failing to register her for UIF and PAYE (assuming he was required to do so) constitutes unfair and unlawful labour practices. Her recourse is to approach the CCMA.



I don't know whether she can apply retrospectively or not (I assume she can't), however, the CCMA ought to advise and assist with this as well.



Again, CCMA. The obvious challenge, though, is proving that she actually worked those days (especially if he denies that he ever employed her in the first place).



Legally, she was an employee - it doesn't matter whether she received pay slips, or even whether there was a documented employment contract. Her recourse (yet again) is to approach the CCMA. Unfortunately, as with question 3, she faces the challenge of proving that she actually worked for him. If she was always paid in cash, then there won't be a money trail. Hopefully she has some evidence of her work (e.g. emails; business documents; testimony from customers or other employees).



If her boss has transferred his business to his wife as a going concern, then his wife's new company will inherit all of the employment obligations and labour liabilities that her husband's business incurred. That means that your neighbour, legally, is employed by the new company.

If her boss closed down his business and his wife his started up a completely new business, then the new business would not inherit the employment contracts of the old business. However, her boss would be legally required to complete proper retrenchment proceedings. Assuming he doesn't, he will be committing an unfair and unlawful labour practice, and your neighbour can take him to the CCMA for recourse.

Long story short: tell your neighbour to go to the CCMA and, hopefully, she has some evidence of her employment.

[sterne.law@gmail.com]

UIF can be claimed retrospectively.
As per Greig's post if the company was sold/transferred then employees go with the deal.
Alternatively, only the assets were sold, in which case there was a retrenchment.

Given the wife's involvement tehre is probably no payment or paperwork. In evetiably this type of transaction is merely a transfer of business.
Your number has options but I think will need some legal help.

The other route is the law soceity.
The big firms also have probono departments (Norton Rose, Weber Wentzel, ENS)
I will presume that fees will be a problem.
SASLAW runs a probono labour project, but I do not know if it is in Cape Town, I know its in Durban and Joburg. The other issue is that they cover labour court matters not CCMA bit it is worth a stab, you may find an attorney who feels for the client.