ties exist in present day South Africa, and to hide behind the Constitution to ... Insolvency law terminated a contract of employment if the employer's estate.
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ties exist in present day South Africa, and to hide behind the Constitution to justify such denial, makes freedom of contract a loaded expression. The fact that the majority of the judiciary identifies with business and enthusiastically supports free market, neo-liberal economics does not surprise. The fact that the proud tradition of Van den Heever JA (Tjollo) and Joubert JA (Ornelas) continues to be followed in the Supreme Court of Appeal in spite of the Constitution is rather confusing. However, a ray of sunshine is detected in the incremental recognition by individual judges that the Constitution has to have an effect on the law of contract. It is common knowledge that the hare will never overtake the tortoise and that legal development prefers the snail. L HAWTHORNE University of South Africa
THE EFFECT OF RECENT AMENDMENTS TO THE INSOLVENCY ACT AND LABOUR RELATIONS ACT ON EMPLOYMENT CONTRACTS – A NEW ERA: OR IS IT?
1
Introduction
The sale, transfer or the insolvency of a business has far reaching effects on employment contracts. In these situations one often finds a clash between an owner’s interest in the profitability, efficiency, continued existence or the effective disposal of a business, and an employee’s interest in job security, the right to freely choose his or her employer and fair labour practices as enshrined in our Constitution (see s 23(1) of the Constitution of the Republic of South Africa 108 of 1996; Jordaan “Transfer, closure and insolvency of undertakings” 1991 ILJ 935; Van Eck and Boraine “Voluntary winding-up of a company and ‘dismissals’ in terms of the Labour Relations Act” 2002 THRHR 610 – hereinafter Van Eck and Boraine 2002 THRHR). Insolvency law terminated a contract of employment if the employer’s estate was sequestrated or, in the case of a company or close corporation, liquidated due to its inability to pay its debts (s 38 of the Insolvency Act 24 of 1936 prior to amendment by the Insolvency Amendment Act 33 of 2002; s 38 also operates in the case of a company or close corporation wound-up due to its inability to pay its debts – see s 339 of the Companies Act 61 of 1973 and s 66 of the Close Corporations Act 69 of 1984). This left an employee unemployed (usually without warning) and with a minimal claim against an insolvent estate. In the new labour law dispensation, attempts were made to improve the employee’s plight in these situations with the enactment of the Labour Relations Act 66 of 1995 (hereinafter LRA). However, this in turn led to a number of interpretational problems surrounding employment contracts that were meant to be transferred together with a business that was sold or transferred as a going concern (see the former s 197 LRA and cf Olivier and Potgieter “The legal regulation of employment
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claims in insolvency and rescue proceedings: Comparative inquiry” 1995 ILJ 1295 1331; Schlemmer and Oelofse “Konflik tussen die Wet op Arbeidsverhoudinge en die Insolvensiewet” 1996 TSAR 559; Lombard and Boraine “Insolvency and employees: An overview of statutory provisions” 1999 De Jure 300; Blackie and Horwitz “Transfer of contracts of employment as a result of mergers and acquisitions: A study of section 197 of the Labour Relations Act 66 of 1995” 1999 ILJ 1387; Evans “New developments in insolvency and contracts of employment” 2000 SA Merc LJ 408 410 et seq; Kunst et al Meskin Insolvency law and its operation in winding-up (2003 update) par 5 21 10 1; Boraine and Van Eck “The new insolvency and labour legislative package: How successful was the integration?” 2003 ILJ 1840 1846 – hereinafter Boraine and Van Eck 2003 ILJ). In order to address some of these problems, the legislature introduced amendments to the LRA in the form of the Labour Relations Amendment Act 12 of 2002 (hereinafter LRAA). Section 197 LRA was amended and now regulates the transfer of contracts of employment when a solvent business is sold or transferred. Previously section 197 LRA dealt with the transfer of a business, both in solvent and insolvent circumstances. Sections 197A and 197B LRA were inserted by the LRAA and they now regulate the transfer of a contract of employment when an insolvent business is transferred as a going concern, as well as providing for procedural rights for the benefit of employees. The Insolvency Act was also amended. The Insolvency Amendment Act inserted a new section 38 and amended section 98A, while the Insolvency Second Amendment Act 69 of 2002 introduced procedural rights for employees in that they or their representatives are now entitled to be notified of sequestration or winding-up applications. Section 98A regulates the preferential status of certain claims of an employee for arrear salaries, leave or holiday pay, payment for any other form of paid absence and retrenchment or severance pay. The amendment to section 98A provides that employees are also entitled to claim severance pay as part of their preferent claims where their employment contracts have been terminated in terms of the new section 38 of the Insolvency Act (cf Kunst et al par 12 4 7). The new sections 197, 197A and 197B LRA only play a role in an insolvency scenario when a business (or part thereof – see the definition of “business” in s 197(a)) is sold or transferred as a going concern to a new employer, whereas the new section 38 of the Insolvency Act operates generally and without exception. If no transfer of a going concern occurs, nothing in the LRA renders section 38 inoperative, yet together these provisions have a profound effect on employment contracts. This note seeks to examine some of the problems experienced in both insolvency and labour law regarding the effect of insolvency on employment contracts, as well as to critically examine whether the relevant amendments have sufficiently addressed these problems. 2
A new era: Or is it?
With the new section 38 of the Insolvency Act, the legislature heeded the court’s advice (Ndima v Waverley Blankets Ltd; Sithukuza v Waverley Blankets Ltd 1999 20 ILJ 1563 (LC)). Instead of terminating the employment contract, section 38(1) now provides for the suspension of the employment contracts with effect
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from the date of the granting of a sequestration order. However, unless there is an agreement on continued employment, all employment contracts are automatically terminated 45 days after the appointment of the final liquidator or trustee (s 38(9)). 2 1 A conflict between sections 38 and 197 In terms of the former section 197 LRA, contracts of employment, in instances where a business was transferred as a going concern after the sequestration or liquidation of the insolvent employer or in terms of a scheme of arrangement or compromise, would be transferred to a new employer without an employee’s consent. The section provided inter alia that such a transfer of a business did not interrupt the employee’s continuity of employment (s 197(4)). Some argued that the automatic transfer kept the employment contracts alive, which meant that the former section 38 of the Insolvency Act had been nullified by the former section 197 LRA (cf Whitear-Nel “The effect of insolvency on a contract of employment” 2000 ILJ 845 847; and counsel for both parties in SA Agricultural Plantation and Allied Workers Union (SAAPAWU) v HL Hall and Sons (Group Services) Ltd 1999 ILJ 399 (LC)). This indicated a conflict between the two statutes where, in accordance with section 210 LRA, the latter should prevail. The Labour Court (Hall and Sons supra) considered the provisions of section 210 and held that since the LRA was silent on the termination of employment contracts upon the insolvency of the employer, there was no conflict between these provisions. Consequently liquidation would ipso iure result in the termination of the employment contracts by virtue of the provisions of section 38 of the Insolvency Act (cf Kunst et al par 5 21 10 1). However, the question of the status of an employee’s contract remained. If an employee’s continuity of employment was unaffected, how could this be reconciled with the fact that the employment contracts were in fact terminated in terms of the former section 38 of the Insolvency Act? In order to determine the status of the contract, others argued that the terminated employment contract revived once a transfer envisaged by section 197 occurred (cf Schlemmer and Oelofse 565; Basson et al Essential labour law Vol 1 (2000) 226; Kunst et al par 5 21 10 1) or that the contract should be terminated retrospectively. According to the latter viewpoint, section 38 comes into operation as soon as it becomes clear that the undertaking is not going to be transferred as a going concern. Should the undertaking be transferred as a going concern, section 38 would not come into operation and contracts of employment are transferred to the new employer (cf Lombard and Boraine 312). Those who argued that the terminated contract revived upon its automatic transfer, relied among other things on the wording of the former section 197(2)(b) LRA, which referred to the “contracts of all employees that were (emphasis added) in existence immediately before the old employer’s winding-up or sequestration”, indicating a termination by the former section 38 (Wallis “Section 197 is the medium. What is the message?” 2000 ILJ 1 6; Evans 411). None of the amendments to the Insolvency Act or the LRA clearly state what will happen if an agreement to transfer the insolvent business or part thereof is only reached after the employment contracts have been terminated upon expiration of the 45 day suspension period. It would seem that if one reads the new section 38 of the Insolvency Act together with the new section 197A LRA,
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the same conflicts found in respect of the previous dispensation still remain. The contracts are now only suspended for 45 days. Should there be any attempt to salvage or transfer the insolvent business, the employees or their representatives will have to attempt to reach an agreement prior to the expiration of the suspension period (see Boraine et al “The amendments to sections 38 and 98A of the Insolvency Act, and section 197 of the Labour Relations Act” 2002 SAILR 171 186 – hereinafter Boraine et al; Boraine “A critical analysis of the amended section 38 of the Insolvency Act and related legislative amendments” 2003 unpublished paper – hereinafter Boraine unpublished paper; Boraine and Van Eck 2003 ILJ 1860 1865). It is also uncertain whether agreement can be reached to transfer a business within 45 days. 22
Who is the employer?
There was no definition of “employer” in the Insolvency Act or in the LRA, which led to conflicting opinions (cf Whitear-Nel 845). Whitear-Nel 847 pointed out that this allowed, through the imaginative use of “labour broking” companies and the old section 38 of the Insolvency Act, de facto employers to escape the requirements of the law. In HL Hall and Sons supra the de facto employer was effectively able to terminate the services of its employees that engaged in a protected strike, despite section 67 LRA, which prohibits such dismissal. The de facto employer established “labour broking” companies which had no assets and no income other than the fee provided by the de facto employer for the supply of labour. Therefore, once the employees went on strike, no fee was paid by the de facto employer and as the “labour broking” company was still incurring expenses in respect of accommodation and food for the employees, insolvency was the natural result. Thereafter the former section 38 ensured that the employment contracts would be terminated. The new section 200A LRA creates a presumption as to who will be deemed to be an employee for the purposes of the LRA. It is clear that the legislator sought to widen the definition in order to prevent attempts at avoiding the obligations of labour law (cf Boraine et al 187). Taking this definition into account, it will be possible to infer who an employer is. Section 200A(1) LRA provides as follows: “(1) Until the contrary is proved, a person who works for, or renders services to, any other person is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present: (a) the manner in which the person works is subject to the control or direction of another person; (b) the person’s hours of work are subject to the control or direction of another person; (c) in the case of a person who works for an organisation, the person forms part of that organisation; (d) the person has worked for that other person for an average of at least 40 hours per month over the last three months; (e) the person is economically dependent on the other person for whom he or she works or renders services; (f) the person is provided with tools or trade or work equipment by the other person; or (g) the person only works for or renders services to one person.”
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It is submitted that this definition could assist in a situation such as the one described above. It should also be clear that the protection granted under the new sections 197, 197A and 197B LRA will also extend to all those relationships that can be brought under the extended definition of “employee” (see Boraine et al 188). 2 3 Period between sequestration or liquidation and transfer When the former section 197 LRA came into operation, two questions were raised in respect of the period between sequestration or liquidation and a decision by creditors, at the second meeting, to transfer an undertaking as a going concern. The first question concerned the position of an employee who in the interim had found alternative employment. If the employment contracts revived or remained in force and were transferred to the new employer, would the employee have breached his employment contract which was meant to carry on with the new employer? It was suggested that only those employees who had not found alternative employment, should have their contracts transferred to the new employer (Schlemmer and Oelofse 567; Lombard and Boraine 312; Evans 412). This issue has not been addressed by any of the amendments. It would, however, seem that an employee would have to resign from his or her suspended contract should he or she wish to take up new employment (cf Boraine and O’Brien “Proposed amendments to the Insolvency Act 24 of 1936 and Section 197 of the Labour Relations Act 66 of 1995” 2001 SAILR 112 113). The effect of this resignation on an employee’s claim for compensation (s 98A) and severance benefits is not clear either. The second question concerned an employee’s remuneration for the period between sequestration (or liquidation) and transfer. Did a claim for remuneration fall under sequestration costs or within a claim for damages in terms of the former section 38 – or was it an obligation to be passed onto the new employer (cf Lombard and Boraine 312; Evans 413-414; Schlemmer and Oelofse 561)? This issue has to some degree been resolved by the fact that during the period of suspension of an employment contract, an employee whose contract is suspended is not required to render services and is not entitled to any remuneration or to the accrual of any employment benefits. However, an employee is entitled to unemployment benefits in terms of section 35 of the Unemployment Insurance Act 63 of 2001 (s 38(2) and (3) of the Insolvency Act). However, in this interim period it is possible for a trustee or liquidator to engage the services of some of the employees of the insolvent employer, in order to continue with the business with the aim of transferring it as a going concern or rescuing it in terms of a scheme of arrangement. According to Boraine et al 181– 182, it is not clear what the position will be here. In the first place it would seem that the employees will be entitled to refuse the request of the trustee and, secondly, they submit that if the employees agree to continue working, the effect would be that the contracts of employment will cease to be suspended as from the date of continuance of their service. In such an instance the employees will be entitled to their salaries, and the trustee will have to pay them as a result of the carrying on of the business. It would also appear that the salaries paid will be treated as administration expenses against the free residue (s 97(2)(c) of the Insolvency Act). The trustee could possibly also have to face several labour law issues if he or she were to decide to bring this sort of arrangement to an end (see Boraine et al
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181–182). According to Boraine and Van Eck 2003 ILJ 1860 the trustee or liquidator should rather conclude separate fixed term contracts with those employees whose services may be required after commencement of sequestration or liquidation. However, from the employees’ point of view it would be preferable if the contracts of employment cease to be suspended. This would enable the employees to work on the same terms and conditions as before. Furthermore, the employees would accumulate additional continuous service for the purposes of calculating leave and severance pay (ibid). It is submitted that this issue was not dealt with in sufficient detail in the amendment Acts and that it represents an oversight by the legislature since, as pointed out by Boraine et al 182, it might be to the benefit of both the employees and the creditors in certain instances to continue with the business, which would also make sense from a business rescue point of view. 24
No consultation required
Prior to amendment there were few mechanisms under either the LRA or the Insolvency Act which, firstly, compelled an employer to notify the employees or their representatives of the impending sequestration or liquidation of a business, and, secondly, allowed for consultations between the trustee or former employer and the affected employees aimed at finding alternate solutions to sequestration or liquidation (cf Blackman “The employee and the insolvent company” 1993 ILJ 543 544; Olivier and Potgieter 1321). This situation has changed completely and is the area in which the most advanced improvements have been made. Section 197B LRA requires that an employer who is facing financial difficulties that may reasonably result in its winding-up or sequestration, must advise a party thereof as indicated in section 189(1) LRA (ie any person whom the employer is required to consult ito a collective agreement; a workplace forum, registered trade union or the employees themselves). Furthermore, an employer that applies to be wound-up or sequestrated, or an employer that receives such an application, must provide the same parties with a copy of the application (see s 197B(2)). Sections 4(2)(b), 9(4A)(a) and 11(2A) of the Insolvency Act as well as the new sections 346A(1) and 346(4A)(a) of the Companies Act, require that employees and their various representatives receive notice of the application for sequestration or liquidation and a copy of the rule nisi granting provisional sequestration or liquidation (see Kunst et al par 2 1 6–2 1 9 and 3 4; Boraine unpublished paper for a detailed discussion of the notification procedures). Evans 415 submits that these provisions may facilitate and expedite the transfer of an insolvent business or part thereof, since the early notification of the proceedings may enable interested parties to enter into the consultations required in terms of section 38(5) at the earliest possible stage. However, he points out that these provisions may also prove to be a stumbling block for all the parties involved, particularly creditors (including employees), as the sequestration proceedings may be protracted if employees or their representatives were to bring unnecessary proceedings to oppose the application for sequestration. In addition to the above notification procedures, the new section 38(5) of the Insolvency Act requires consultation with various stakeholders and a period of at least 21 days has to be allowed for the submission of proposals by employees or other interested parties to the trustee (the period is calculated from the date that
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the final trustee is appointed – s 38(7)) before the trustee may terminate the employment contracts in terms of section 38(4). The reason for requiring the consultations and proposals is to allow for the parties to reach consensus on any appropriate measures to save the business or part thereof (s 38(6)). If the trustee chooses not to terminate the contract, the onus is on the employee to initiate consultation (Evans 419). Evans points out that these provisions place considerable responsibilities on employees or employee representatives. If they fail to initiate consultation, it would appear that the trustee can rid him- or herself of the entire workforce without sanction (see s 38(9) which provides that all suspended employment contracts shall terminate 45 days after the date of appointment of the trustee or liquidator; cf also Anderson “Unravelling the proposed amendments to the Insolvency Act” 2001 ILJ 868 871–872). 2 5 Section 197 made subject to agreement Prior to the amendments there was some confusion as to whether or not the automatic transfer of employment contracts was obligatory, or whether contracts of employment were only automatically transferred to the new employer when both the purchaser and seller agreed that such contracts would be transferred. This was due to the fact that the former section 197 LRA did not expressly mention whether the consent of the new employer is necessary for the transfer of the contracts of employment to take place (cf the conflicting decisions of Foodgro, a Division of Leisurenet Ltd v Keil 1999 ILJ 2521 (LAC) and NEHAWU v University of Cape Town 2002 4 BLLR 311 (LAC) - overturned by the Constitutional Court in NEHAWU v University of Cape Town 2003 ILJ 95 (CC); cf also Schlemmer and Oelofse 565; Lombard and Boraine 309; Le Roux “Transferring contracts of employment” 1996 CLL 11 13). In terms of section 197A(2) LRA, which applies irrespective of the provisions regarding termination in the Insolvency Act, and unless otherwise agreed in terms of the new section 197(6), the new employer is automatically substituted in the place of the old employer in all contracts of employment in existence immediately before the old employer’s provisional winding up or sequestration. Furthermore, the new employer must employ these employees on terms and conditions that are on the whole not less favourable than those on which they were employed by the old employer (see s 197A(3)). The new section 197(6) of the LRA provides that an agreement not to automatically transfer all contracts of employment must be reached between the old employer, the new employer or both the old and new employer acting jointly on the one hand, and the appropriate person or body referred to in section 189(1) LRA on the other. On a practical level, the issue of how to align the terms and conditions of employment of the new employees with those of existing employees may be a difficult process, bearing in mind that the new terms and conditions must on the whole not be less favourable than those under which the new employees were previously employed. It is important for those negotiating such a transfer to bear in mind that a decision by a prospective purchaser to purchase an ailing or insolvent business, will depend on whether or not he will be able to administer the correct medicine to save the business. In the absence of a collective agreement, employees may find that in the interest of continued employment they have no other choice but to accept new terms and conditions of employment (Basson et al 229). The amendments to the LRA have also created new categories regarding “constructive dismissals”, namely where an employee whose employment contract
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has been automatically transferred, resigns from the new employer under unbearable circumstances, and in respect of “automatically unfair dismissals” whereby, if the employee is dismissed for reasons related to a transfer under the new section 197 or 197A, he or she would be entitled to compensation from the employer (s 186(f) and 187(g) LRA, and see Boraine et al 191). The position has been clarified significantly in that it is clear who has to reach consensus in the event of an agreement not to transfer some or all of the employment contracts to a new employer. However, should the transfer take place after the expiry of the suspension period, that is when the contracts have been terminated in terms of section 38(9), we face the same predicament as before with the “revival” of the employment contracts (cf discussion in para 2 1). Blackman 566 indicates that the compulsory transfer of the employees’ contracts is achieved at the expense of the other creditors. The purchaser will pay less for the business where he has to take on all the employment contracts, resulting in dimished funds with which to pay the other creditors 2 6 What rights and obligations are excluded from transfer? Blackie and Horwitz 1404 et seq highlighted the fact that no clear definition was given regarding which rights and obligations were excluded from transfer under the former section 197(2) LRA. Le Roux 14 and Lombard and Boraine 309 describe the distinction between transferring a contract of employment and the fact that rights and obligations remained behind with the old employer, as significant. This, they argue, indicates that the rights and obligations that could not be derived from an employment contract were not transferred, and that the continuity of employment referred to in the former section 197(4) LRA referred to the issues pertaining to seniority, pension, years of service for the purpose of calculating severance packages and the revival of the original conditions of employment (see Lombard and Boraine 314 and Le Roux 15). In order to make the purchase of an ailing or insolvent business more attractive, the intention of the legislator seems to be not to burden the new employer with actions stemming from, for example, unfair dismissals by the old employer. However, it is submitted that the question relating to the extent of the rights and obligations that are excluded from transfer to the new employer has not been clarified by the legislature. Section 197A merely provides (as did the former s 197(2)(b) and (4)) that “(b) all the rights and obligations between the old employer and each employee at the time of the transfer remain rights and obligations between the old employer and each employee; (c) anything done before the transfer by the old employer in respect of each employee is considered to have been done by the old employer; (d) the transfer does not interrupt the employee’s continuity of employment and that the employee’s contract of employment continues with the new employer as if with the old employer”.
At least in respect of an employee’s rights to the same benefits under pension funds and medical aids, the new section 197(4) provides that an employee can be transferred to a different pension, provident, retirement or similar fund, if the criteria in section 14(1)(c) of the Pension Funds Act 24 of 1956 are satisfied. 2 7 Other aspects An aspect that may prove problematic in the future, is the fact that section 197A(1)(a) LRA refers to the term “insolvency”. It is not clear whether it refers
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to factual or commercial insolvency or to the situation where the employer’s estate has been sequestrated, or, in the case of a company, wound-up due to an inability to pay its debts. If read in isolation and given an ordinary meaning, it appears to refer to an employer who is in insolvent circumstances irrespective of whether or not there is a sequestration or a winding-up order. However, if one considers the provisions of section 197A(2) and (4), it appears to refer to the situation where the estate has been sequestrated or wound-up. It could therefore be argued that it was the legislature’s intention to refer only to this situation (cf Boraine et al 195 199; Boraine unpublished paper; Boraine and Van Eck 2003 ILJ 1862–1863). Boraine (unpublished paper) submits that section 197A(1) in its current wording is intended to apply irrespective of whether or not there is a sequestration or winding-up order (cf also Kunst et al para 5 21 10 3). A further aspect that warrants mentioning is the fact that section 197A LRA also applies where only a part of a business is transferred as a going concern (cf s 197(1)(a) – definition of “business”). This may be particularly relevant in an insolvency scenario where a prospective purchaser may only wish to purchase the viable parts of a business. In the first place it may be difficult to distinguish which employees are attached to that specific portion of a business. Secondly, section 197A(2)(a) of the LRA requires that all contracts of employment in existence at the time of sequestration be transferred to the new employer. Boraine (unpublished paper) points out that although it can be argued that the intention was to limit the operation of this section to the contracts of employees attached to the transferred part of the business, the wording suggests differently. The time delay experienced in certain estates before the appointment of the final trustee may also cause practical problems (Boraine et al 186). An employee whose contract has been suspended will face the dilemma of having to decide between either clinging onto a suspended contract in the (possibly futile) hope that his or her employment contract may be transferred, or resigning from his or her suspended employment (cf Evans 413). It may also become difficult to revive a business (ie to sell it as a going concern) after a substantial period of time has elapsed (cf Boraine et al 186). Evans 415–416 suggests that the legislator should have made provision for the debtor (or the Master or trustee) and creditors to prove damages against employees or their representatives, or both, if it is shown that they have caused an unnecessary delay to the insolvency proceedings. 3
Conclusion
While the latest amendments to the labour dispensation do herald a new era, it would appear that the practical implementation of the provisions will unfortunately leave us with just as many questions as before. The amendments place additional burdens on trustees, and considerable responsibilities on employee representatives or employees themselves (cf Evans 419). Trustees and liquidators may decide that it would be an easier option – and advise creditors accordingly – to sell the business piecemeal, rather than selling it as a going concern and having to comply with the cumbersome requirements of section 197A LRA (cf Boraine et al 199). In closing we submit that the amendments fall far short of their intended aim, namely to: (a) improve the sensitivity of our legal framework to the purpose of creating more jobs, and
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(b) address the unintended consequences of some provisions in our laws (cf “Memorandum on the objects of the Insolvency Amendment Bill” Insolvency Amendment Bill B14-2002). The answer to the question as to why a purchaser would wish to purchase an insolvent business seems relatively simple. The purchaser believes that by administering large or minor doses of the correct medicine, the business has a reasonable chance of success. In order to save and/or create more jobs, this needs to be encouraged and supported. Few employers will choose to purchase an insolvent business as a going concern when the new employer will have to take over all the employment contracts of the old employer, coupled with the risks involved in future claims for constructive dismissals or automatic unfair dismissals (cf ss 186(f) and 187(8) and the discussion in para 2 5). In these circumstances, although not impossible, it will be difficult for the new employer to administer the correct medicine. When an employee loses his or her job through no fault of his own, it has a devastating effect on his or her family. It is therefore our submission that it is perhaps in the area of business rescue, rather than labour legislation, that the aims of the legislator and interests of these employees could best be addressed. S PAPADOPOULOS M ROESTOFF University of Pretoria
