Board of Executors Ltd v McCafferty

The respondent was employed within the Board of Executors (BOE) group of companies, initially by BOE 1838 and later working in the financial innovation unit associated with BOE Merchant Bank Ltd (BOE MB). Although his salary was administratively paid by BOE 1838 and he worked under the supervision of BOE MB management, the holding company, Board of Executors Ltd (the appellant), exercised overarching control over the group. The appellant offered the respondent a share option scheme and ultimately terminated his employment by a retrenchment letter issued on its own letterhead, citing operational requirements. A dispute arose as to whether the appellant was the respondent’s employer at the time of retrenchment.

The appeal was dismissed with costs, confirming that Board of Executors Ltd was an employer of the respondent.

The case is important in South African labour law for clarifying that, within corporate groups, a holding company may be regarded as an employer or co-employer where it exercises ultimate control over employment and termination, notwithstanding attempts to structure affairs to avoid having employees.