Acting Labour Court Judge Tapiwa Gandidze on Wednesday found that the application brought by the National Union for All Sectors (Nufas), for 12-month salary awards to Yvette Arendse and Lucinda Nitzsky against 3Sixty Life, National Union of Metal Workers of South Africa (Numsa) Investment Company, and Doves Holdings Group, was without merit. Picture: Supplied
Under curatorship, 3Sixty Life has won a skirmish amid its bigger battles after the Labour Court in Cape Town dismissed an application for compensation by two fixed-term contract employees who were fired by the company in April this year as part of a retrenchment exercise.
Acting Labour Court Judge Tapiwa Gandidze on Wednesday found that the application brought by the National Union for All Sectors (Nufas), for 12-month salary awards to Yvette Arendse and Lucinda Nitzsky against 3Sixty Life, National Union of Metalworkers of South Africa (Numsa) Investment Company, and Doves Holdings Group, was without merit.
This was because it had been brought before court under provisions for compensation instead of those for unfair dismissals, and the court found the company was technically off the hook.
While the court accepted to hear the matter as urgent because retrenchment applications are by their nature urgent and 3Sixty Life had admitted that it had lost business and no longer had the funds to pay its staff, and therefore was at risk of closing its doors, it ruled the application misdirected as the provisions applied to companies that employed more than 50 people and was retrenching at least 10 of them.
3Sixty Life argued that though it had 66 employees, only four were affected by the retrenchment process and that one employee was dismissed for operational requirements in the 12 months preceding these retrenchments, hence the applicants’ notice did not apply.
Judge Gandidze said even for that provision, the court could still have entertained the claim for compensation as a stand-alone remedy.
Judge Gandidze said Arendse and Nitzsky could not pursue a claim for compensation in terms of section 189A(13)(d) of the Labour Relations Act, but that the court could still have entertained the application as a stand-alone remedy.
She said the court’s refusal to entertain the application under retrenchments process provision did not preclude remedies for the applicants and suggested they could utilise sections of the Labour Relations Act for compensation as well on claims of being employed on contracts of indefinite duration prior to their retrenchment.
“If there is a dispute about the applicant’s entitlement to severance pay, it can be referred to the CCMA or a Bargaining Council with jurisdiction. The severance pay payable can be determined by this court in a section 191(5) referral,” Judge Gandidze said.
The court found Arendse and Nitzsky had not made out a case for the relief sought but said there was no reasonable explanation given as to why Nitzsky – who was alleged to have secured alternative employment with a competitor – had not been allowed to resume her duties until the consultation process was concluded.
“There is also a dispute as to whether the applicant employees are still receiving their salaries. I am not in any way pronouncing on the merits of any claim that the applicant employees may be advised to bring,” she said.
“All l am saying is that their aggrievement with the state of affairs in the period preceding the launch of the present application is understandable, even though the current application failed.”
3Sixty Life has been placed under curatorship of Fagmeedah Petersen-Cook since December 2021 following an application by the Prudential Authority (PA) by an ex parte application, to place 3Sixty Life under provisional curatorship, in accordance with its powers in terms of the Insurance Act.
This was after millions of rand in insurance premiums paid by members of Numsa were reportedly siphoned from life insurer 3Sixty Life to prop up other Numsa-owned companies between 2017 and 2019.
The PA placed the insurer under curatorship after a year of operating in an insolvent position. This decision is being challenged by the board of 3Sixty Life, including CEO Khandani Msibi.
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