An employee of the cafe Mugg & Bean, who was fired for an alleged racist remark directed at a manager of Indian descent, won in the Labour Court. The court confirmed that her dismissal was unfair both in substance and procedure.
Mari Tshiala, who worked as a waitress at Mugg & Bean on Kloof in Cape Town, was suddenly dismissed following a conflict with the restaurant's general manager, Premila Anvari, in June 2024.
The dispute arose after a CCMA claim
The conflict began after Anvari learned that Tshiala had filed a claim with the Commission for Conciliation, Mediation and Arbitration (CCMA) regarding alleged unpaid wages following the reduction of her shifts.
Tshiala had been employed by the company on fixed-term contracts from November 2021. Her last contract ran from January to December 2024. Her shifts were reduced from six to three per week, which prompted her to approach the CCMA demanding payment of the owed amount.
Upon learning of the claim, Anvari called Tshiala into her office and accused her of lying in the claim. The exchange concluded with Anvari ordering Tshiala to leave the premises immediately. Subsequently, Tshiala escalated the issue of unfair dismissal to the CCMA.
Employer accused waitress of racist remark
During the arbitration, Anvari described Tshiala as rude, aggressive, and disrespectful, stating that she displayed behavior inappropriate towards management and colleagues. She also claimed that Tshiala had called the manager a coward and shown insubordination.
The employer further alleged that Tshiala made a racist and discriminatory remark during the confrontation, noting that the waitress told her to 'go back to India'. Vosumuzi Sibanda, representing the employer, stated that the confrontation escalated into an argument, and that Tshiala showed 'a certain disrespect' towards Anvari.
When asked what Tshiala specifically said, Sibanda testified that she uttered: 'this is not India', along with other allegedly disrespectful comments. The Labour Court accepted the fact that Tshiala made the remark 'this is not India'.
Court found no legal grounds for dismissal
Nevertheless, Judge T Gandidze ruled that the CCMA commissioner was entitled to conclude that the evidence presented did not establish a lawful reason for Tshiala's dismissal. A video recording of the conflict was shown during the arbitration, but the commissioner found no evidence in the recording supporting the decision to dismiss.
The Judge established: 'The commissioner's conclusion that there was no evidence presented during the arbitration proceedings to support the employer having a lawful reason to dismiss Tshiala cannot be considered one that a reasonable commissioner could not have reached.' The Labour Court rejected the employer's argument that the commissioner failed to consider evidence related to the alleged misconduct. It concluded that the commissioner's finding of no lawful reason for dismissal inevitably meant that the employer's reasons had been considered but deemed insufficient. Consequently, the dismissal was substantively unfair.
Lack of disciplinary hearing before dismissal
The court also deemed Tshiala's dismissal procedurally unfair because she did not undergo any disciplinary procedure prior to being let go. The employer argued that a disciplinary hearing would be pointless since the alleged misconduct occurred in Anvari's presence. The Labour Court rejected this argument. The employer cited a previous ruling concerning Woolworths, asserting that immediate dismissal could be justified if the misconduct affected the core of the employment relationship. Judge Gandidze found that this ruling did not support the employer's argument, noting that the employee in that case had indeed undergone a disciplinary hearing. The court ruled: 'The conclusion that Tshiala's dismissal was procedurally unfair was not only reasonable but correct.'
Court upholds compensation of R15,120
As a result, the Labour Court upheld the CCMA's finding that Tshiala's dismissal was both substantively and procedurally unfair. The commissioner awarded Tshiala compensation equivalent to three months, totaling R15,120. The court declined to interfere with this amount, deeming that the commissioner had properly exercised discretion by considering Tshiala's approximate two years of service and the fact that she had been job searching for over a month at the time of the arbitration. Interest on the R15,120 compensation was set to accrue from August 7, 2024.
However, the court reduced the amount awarded for paid leave. The commissioner awarded Tshiala R3,822 for 21 days of leave. But the Labour Court determined that she had only worked until June 2024 and had accrued 7.5 days of leave, calculated at a rate of R182 per day. Thus, her leave payment was reduced to R1,365. Interest on the adjusted leave payment amount must accrue from the date of the Labour Court's ruling.
Court changes calculation period for unpaid wages
The court also found that the commissioner used an incorrect period when calculating Tshiala's alleged unpaid wages. Although the commissioner established that her shifts were reduced from six to three as early as May or June 2022, Judge Gandidze felt that February 2024 was the more likely date. The court noted that Tshiala would likely have approached the CCMA sooner if her shifts had been reduced in 2022. Therefore, the court ruled that unpaid wages should be calculated for three shifts per week from February 2024 to June 13, 2024. The exact amount remained at the discretion of the employer for calculation. If the parties could not agree, either party could apply to court for a decision. Interest on the adjusted unpaid wage amount will begin to accrue from the date of the Labour Court's ruling.
The employer's appeal against the Labour Court was dismissed regarding the challenge to the findings that Tshiala's dismissal was substantively and procedurally unfair. The court adjusted the payments for leave and unpaid wages but maintained the award of R15,120 compensation. Each party was ordered to pay its own costs.
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