A waitress at the Mugg & Bean cafe won a lawsuit regarding unfair dismissal after her employer accused her of making a racist remark related to the manager's Indian heritage.
Mari Tshiala, who worked as a waitress at Mugg & Bean on Kloof in Cape Town, was immediately dismissed following a conflict with the restaurant's general manager, Premila Anvari, in June 2024. The court confirmed that her dismissal was both substantively and procedurally unfair.
The conflict arose 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 from November 2021 on fixed-term contracts, the last of which ran from January to December 2024. Her shifts were reduced from six per week to three, prompting her to approach the CCMA demanding payment of the owed amount.
Upon learning of the claim, Anvari summoned Tshiala to 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 unfair dismissal dispute to the CCMA.
During the arbitration, Anvari described Tshiala as rude, aggressive, and disrespectful, stating that she displayed a pattern of inappropriate behavior towards management and colleagues. The employer also 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, who testified on behalf of the employer, stated that the confrontation escalated into an argument, and that Tshiala showed 'some disrespect' to Anvari. When asked what Tshiala specifically said, Sibanda testified that she told Anvari: 'this is not India,' along with other allegedly disrespectful comments.
The court acknowledged that Tshiala did indeed utter the phrase 'this is not India.' However, 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.
Video footage of the confrontation was shown during the arbitration, but the commissioner found no evidence in the recording to support the decision to dismiss. The judge noted: 'The commissioner's conclusion that there was no evidence presented during the arbitration hearings to support the employer having a lawful reason to dismiss Tshiala cannot be considered one that a reasonable commissioner could not have reached.'
The court rejected the employer's argument that the commissioner failed to consider evidence regarding the alleged misconduct. It was established that the commissioner's finding of no lawful reason for dismissal implied that the employer's reasons had been considered but deemed insufficient. Thus, the dismissal was substantively unfair.
Furthermore, the court determined that Tshiala's dismissal was procedurally unfair because she underwent no disciplinary process before being terminated. The employer argued that a disciplinary hearing would have been pointless since the alleged misconduct occurred in Anvari's presence. The court dismissed this argument. The employer cited a previous ruling concerning Woolworths, claiming 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 finding that Tshiala's dismissal was procedurally unfair was not only reasonable but correct.'
As a result, the court upheld the CCMA's finding that Tshiala's dismissal was both substantively and procedurally unfair. The commissioner awarded Tshiala compensation amounting to three months' salary, totaling R15,120. The court declined to interfere with this amount, deeming that the commissioner had properly exercised discretion, considering Tshiala's approximately 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 court established that she had only worked until June 2024 and had accrued 7.5 days of leave, calculated at a rate of R182 per day. Consequently, her leave payment was reduced to R1,365. Interest on the adjusted leave payment amount should accrue from the date of the court's ruling.
The court also found that the commissioner used an incorrect period when calculating the alleged unpaid wages. Although the commissioner determined 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 stated that Tshiala would likely have approached the CCMA sooner if her shifts had been reduced in 2022. Therefore, the court ruled that the unpaid wages should be calculated for three shifts per week from February 2024 to June 13, 2024. The exact amount remains at the employer's discretion for calculation. If the parties cannot agree, either party may apply to court for determination. Interest on the adjusted unpaid wages amount should accrue from the date of the court's ruling.
The employer's appeal was dismissed by the court 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 in compensation. Each party was ordered to pay its own legal costs.