AUTOFORUM

MISA comment - Justice more than 5 years after unfair dismissal

Jul 29, 2024 MISA, Motor Industry Staff Association, Labour Court, Tiekie Mocke, Anna-Marie Bodenstein, Dr Gerrie Ebersöhn, Helena Stoffberg

MISA comment - Justice more than 5 years after unfair dismissal

A dealership was ordered to pay 24 months in compensation to an employee and MISA’s legal fees after the Union was forced to “fight a protracted and unnecessary legal battle” in the Labour Court.

Judge Reynaud Neil Daniels described Eastvaal Motors’ (EVM) conduct in response to MISA, the Motor Industry Staff Association, and Helena Stoffberg’s application, as “vexatious”. “The points raised regarding jurisdiction and joinder, were so void of merit that I can only infer that they were raised to frustrate and delay the process,” the Judge found.

According to Daniels, Motomid (MM) in Middelburg (Mpumalanga), was transferred as a going concern in terms of the Labour Relations Act (LRA) to EVM on 1 April 2019. Therefore the dismissal of Stoffberg, the Accounts Administrator of MM, on 2 April 2019 was automatically unfair. The Judge ordered EVM to pay Stoffberg compensation equal to 24 month’s remuneration.

Stoffberg says she is very grateful and satisfied that justice has been done after her legal battle of 5 years and four months. “It was never about the money, but about the principal. I worked for the company for 19 years. I can only thank Tiekie Mocke, Manager of MISA’s Legal Department, Anna-Marie Bodenstein and Dr Gerrie Ebersöhn, MISA’s Attorney, for all their amazing work in stating my case,” says Stoffberg.

Stoffberg was working in a half day position when EVM took over MM, a car dealership, from the Geoffrey Bernitz Family Trust. Henry Bernitz had no appetite to continue with the business after his son, Geoffrey, the Managing Director and Dealer Principal, passed away in tragic circumstances on 14 December 2018.

He and a friend who operated car dealership in Mpumalanga, concluded a “gentlemen’s agreement” about the future of MM. According to the “deal” Clive Blechman of EVM’s would take over all the employees of MM subject to full disclosure of all accrue responsibilities under section 197 of the LRA.

Stoffberg, who was working in a part time position at the time, attended one of the meetings held with staff and enquired if MM would be willing to retrench her and pay her severance pay. She was firmly told that it would not be possible. Bernitz told Stoffberg that she had to take the offer from EVM or resign. Stoffberg was offered employment on a full-time basis, at the same salary she earned on a part time basis. She rejected the offer.

In his evaluation of the evidence, the Judge referred to the decision of Adv Tinus Holiday, the representative of EVM to testify in the trial. “Holiday was warned by the Court that he was exposing himself to an adverse credibility risk. He indicated that he was prepared to take that risk. Holiday testified about an e-mail he sent.”

The just of the e-mail was that no severance pay was applicable as it was a section 197 purchase. According to Holiday his secretary typed and sent the e-mail and made an error by mistakenly omitting to include the word “not”. If the word “not” was included, the sentence reads that it was not a section 197 transfer. “This does not assist Holiday because it does not explain why his secretary would, on her own initiative, make reference to section 197 of the LRA. I must also take into consideration that the e-mail was transmitted at 20h27, when most secretaries are not at the office,” the Judge found.

Daniels rejected the evidence of Holiday. “His version was highly improbable and therefor lacked credibility.” The secretary was not called to confirm that she made an error. Holiday’s e-mail suggests that he believed that the transaction between EVM and MM related to a transfer of the business as a going concern.

Stoffberg testified that MM requested her to take leave while it was decided on how to deal with her issue after she declined EVM’s offer to work full-time for the salary she used to earn for part-time. After she exhausted her leave, she was informed that she did not work for EVM.

The Judge found Stoffberg’s evidence, that she was dismissed as a result of the business transaction between MM and EVM, credible and reliable. “It is significant that EVM marketed itself as MM but under new management. Effectively, it announced, publicly, that MM was the same business but in different hands,” the Judge found. According to him it is fair and equitable to award costs to MISA.

Issued on behalf of MISA by Sonja Carstens, Manager: Media and Communication Department.

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