deVere defence
The international advisory firm claimed that Pennell breached his contract because his work permit expired, which exempted deVere from paying him with effect from 13 June 2014.
This defence was dismissed by the court as it had been previously established under South African law that the absence of a valid work permit does not invalidate an employment contract.
Green disputed the oral agreement he had entered into with Pennell, stating that he had only agreed in principle to paying £50,000 as a retention bonus. He told the court that the payment would be subject to a claw-back of 100% after eight months and 50% before 12 months.
A further performance-based bonus could be paid over the following 12 months.
Green told that court that the meeting “was Mr Pennell asking for something and me coming back with something different”.
His trip to South Africa was to talk to managers on an individual basis about whether they stayed with the company or joined their former colleague Craig Featherby, who left to set up his own firm, Carrick Wealth.
Green was adamant that, until the agreement was drawn up and signed, it would not be binding on the parties.
According to court documents, it was put to Green under cross-examination that it would be highly unusual in any commercial transaction, to pay over money before the agreement under which you’re paying that money is concluded.
Green agreed.
Pennell’s legal team added: “And we know that you made a part payment of this amount, on your version £50,000, on Mr Pennell’s version £150,000, you made part payment of that amount in June 2014, of £20,000, is that right?”
Green accepted that it was.
“And I must put it to you, because I’m going to argue this, that the fact that you started performing under the agreement, shows that the agreement was binding.”
Green said: “I don’t accept that.”
“So, on your version you made this payment out of the kindness of your heart?”
Green answered: “I believed that we would complete an agreement, and I was embarrassed at the fact that the lawyers had taken a long time to do something that should have been relatively straightforward.”
Court ruling
The judge agreed with Pennell’s legal team that Green’s evidence was “of a poor nature”.
“Green did not have an independent recollection of the meeting that took place with [Pennell] and did not recall whether it took place in Johannesburg or Cape Town.”
The judge said: “I am of the view that [Pennell] was a more credible witness and given the surrounding circumstances, his evidence as to the terms of the retention bonus agreement should be accepted i.e. that the balance of £130,000 was unconditional and due and payable prior to [his] dismissal.”
DeVere Investments was ordered to pay £21,361 in notice pay, £66,023 in outstanding commission, and £130,000 for the bonus agreement.
The company was given 14 calendar days to make payment, which has since lapsed with no payment made, Pennell confirmed to IA.
Appeal
DeVere has until 16 May to lodge an appeal, which the company’s spokesperson has confirmed it will do.
DeVere maintains its original position and is committed to having this decision overturned by winning the appeal that we will imminently launch, the company told IA.
“We look forward to a successful outcome.”
With regard to claims of intimidation from deVere by Pennell, the spokesperson added: “Of course Mr Pennell hasn’t accused deVere. If he had we would be seeking a libel action against him as such allegations would be entirely false.
“We don’t know where, why or who these allegations came from. We certainly would not condone such actions. However, we would suggest Mr Pennell goes to the law enforcement authorities.”
