The only option left is to approach the civil courts and attempt to recover the amount. This can be done out of the small claims court if the amount is less than R12 000. This process is not going to be quick and could take up to a year.

Good day.

I have read the response you received from my learned colleague and partially agree with the fact that you might need to peruse civil action, however, I do not think that it will be your only remedy to this situation, let me explain:

The norm was set and established that only the Department of Labour and civil Courts will have jurisdiction (capability) to entertain cases for unpaid monies.

Recent decisions have let to the fact that the CCMA have SOME capabilities to entertain cases were it is alleged that the employer refused to pay monies due and payable to the employee.

Further, depending on your trade, bargaining councils have jurisdiction to cases like these through collective agreements for example The National Bargaining Council for the Road Freight Industry and the Bargaining Council for the Hospitality industry.

Before I continue I would like to find out in what industry your employment was.

In my opinion you have a textbook retrenchment case either in the CCMA and/or Labour Court.

To motivate my discussion further I would like to include an article written by our learned colleague named Ivan Israelstam: (for the purpose of length not all is quoted)

[“Employers have regularly been reminded in this column of the factors that render dismissals for operational requirements (retrenchments) fair and unfair. Despite this, employers continue to get it wrong and, in many cases they land up paying a very heavy price. In order to win a retrenchment case at the CCMA or Labour Court, the employer must fulfil its onus of proving that the retrenchment was fair in all respects. It is the employer who has the duty of proving that there was a genuine and valid reason for retrenching staff in the first place.

Furthermore, they must prove that the decision as to which employees will be retrenched and which will keep their jobs was arrived at fairly. The retrenchment procedure as laid down in the Labour Relations Act (LRA) must be followed properly and in good faith by the employer. The employer must also prove that he/she has shared with the targeted employees (or their representatives) all documentary and other information pertinent to the retrenchment.

Despite the fact that the retrenchment procedure is clearly spelt out, employers are still being caught out at the CCMA and in the Labour Court for failing to follow procedure. For example, in the case of Numsa and others v Dorbyl Ltd and another (2004, 9 BLLR 914) 176 employees embarked on a protected strike. Thereafter, the plant at which they worked was closed down and 122 employees were retrenched.

The employees claimed that the retrenchments were unfair because (among other reasons) they had not been properly consulted by the employer before being retrenched and the options were not explained to them. The court found that the decision to retrench was taken at an executive meeting held before the employer had consulted the employees regarding the retrenchments. This rendered the consultations meaningless as the employer had already made up its mind to go ahead with the retrenchment procedure and, therefore, it went into the consultations with a foregone conclusion.

As a good-faith consultation is the core requirement of retrenchment procedure, the retrenchment was procedurally unfair. The employer was required to pay each of the 122 retrenched staff two months' remuneration in compensation. In Nkopane and others v the Independent Electoral Commission (2007, 2 BLLR 146) the employees were employed on the basis of fixed-term contracts. However, prior to the natural expiry date of the contracts, the employees were retrenched.

The Labour Court found that it was a breach of contract for the employer to terminate the contracts prior to the expiry date unless the employees had been in breach themselves. However, this had not been the case and the employer was ordered to pay all the employees out up to the date of the expiry of their contracts.

Although the courts have become stricter over time in applying retrenchment law, employers still implement retrenchments without giving thought to labour law compliance.

As I have repeatedly warned employers, the courts see retrenchments as no-fault terminations. This means that the employee is losing his/her job through no fault of his/her own. In addition, the unemployment rate in South Africa is extremely high and it is very difficult for retrenchees to find new jobs.

For these reasons the courts have no hesitation in protecting the rights of retrenchees and making employers pay heavily where they deviate from the law.”]

The “down Fall” of the business was  the ultimate cause of the new owner, you are the “victim” in this matter.The financial situation took an irrevocable down spiral of events  that left the employees prejudiced by the actions of the new owner;

It is clear that you attempted to resolve the matter to no avail which defiantly will count in your favour. It is evident that the franchise had it with the business practice of the new owner and imposed the penalty of removing themselves from the new owner.

Depending on the contract between the new owner and the franchise, they may be liable as well, due to a number of legal reasons.

I will not suggest that you attempt to handle this matter yourself and will advise you to contact Labour Protect in order to seek assistance. (I am not affiliated with Labour protect in any way or form, however this is their website and for this reason I do not think it is my place to render my contact details)

Should you consider this route you MUST act fast in order to bring the condonation application in the relevant forum.

Hope this help.