Mugg & Bean waitress fired after ‘this is not India’ remark wins Labour Court battle - IOL

Mugg & Bean waitress wins unfair-dismissal case over ‘this is not India’ remark.

A Mugg & Bean waitress who was accused by her employer of making a racist remark about her manager’s Indian roots has won her Labour Court battle after the court upheld a finding that her dismissal was both substantively and procedurally unfair.

Marie Tshiala, who worked as a waitress at Mugg & Bean on Kloof in Cape Town, was summarily dismissed following a confrontation with the restaurant’s general manager, Premilla Anvary, in June 2024.

The dispute arose after Anvary learnt that Tshiala had lodged a claim with the Commission for Conciliation, Mediation and Arbitration (CCMA) over what she alleged was outstanding remuneration after her shifts had been reduced.

Tshiala had been employed by the business since November 2021 under fixed-term contracts. Her final contract covered January to December 2024.

Her shifts had been reduced from six per week to three, prompting her to lodge a claim with the CCMA seeking outstanding remuneration.

After learning about the claim, Anvary called Tshiala to her office and accused her of lying in the claim.

The exchange ended with Anvary instructing Tshiala to leave the business immediately.

Tshiala subsequently referred an unfair dismissal dispute to the CCMA.

During the arbitration, Anvary described Tshiala as rude, aggressive and disrespectful and said she had displayed a pattern of inappropriate behaviour towards management and colleagues.

She said Tshiala had also called a manager a coward and had been insubordinate.

The employer further alleged that Tshiala had made a racist and discriminatory remark during the confrontation, with Anvary saying the waitress had told her to “go back to India”.

Vusumuzi Sibanda, who testified for the employer, said the confrontation had developed into an argument and that there had been “some disrespect” from Tshiala towards Anvary.

When asked what Tshiala had said, Sibanda testified that she had told Anvary: “this is not India”, along with other allegedly disrespectful comments.

The Labour Court accepted that Tshiala had made the “this is not India” remark.

However, Judge T Gandidze found that the CCMA commissioner had been entitled to conclude that the evidence did not establish a valid reason for Tshiala’s dismissal.

A video recording of the confrontation had been played during the arbitration, but the commissioner found no evidence in the recording supporting the decision to dismiss her.

“The commissioner’s finding that no evidence was presented during the arbitration proceedings to prove that the employer had a valid reason to dismiss Tshiala cannot be said to be one that no reasonable commissioner could have arrived at,” the judge found.

The Labour Court rejected the employer’s argument that the commissioner had failed to consider the evidence surrounding the alleged misconduct.

It found that the commissioner’s conclusion that there was no valid reason for the dismissal necessarily meant that the employer’s reasons had been considered but found insufficient.

The dismissal was therefore substantively unfair.

The court also found that Tshiala’s dismissal was procedurally unfair because she had not been subjected to any disciplinary process before she was fired.

The employer argued that a disciplinary hearing would have served no purpose because the alleged misconduct had occurred in front of Anvary.

The Labour Court rejected this argument.

The employer had relied on a previous judgment involving Woolworths, arguing that summary dismissal could be justified where misconduct strikes at the root of the employment relationship.

Judge Gandidze found that the judgment did not support the employer’s argument, noting that the employee in that matter had in fact been subjected to a disciplinary hearing.

“The finding that Tshiala’s dismissal was procedurally unfair was not only reasonable but also correct,” the court ruled.

The Labour Court consequently upheld the CCMA’s finding that Tshiala’s dismissal was substantively and procedurally unfair.

The commissioner had awarded Tshiala three months’ compensation, amounting to R15,120.

The court declined to interfere with this amount, finding that the commissioner had properly exercised his discretion after considering Tshiala’s approximately two years of employment and the fact that she had been unemployed for more than a month when the arbitration took place.

Interest on the R15,120 compensation was ordered from August 7, 2024.

However, the court reduced the amount awarded for leave pay.

The commissioner had awarded Tshiala R3,822 for 21 days of leave.

But the Labour Court found that she had worked only until June 2024 and had accrued 7.5 days of leave, calculated at R182 a day.

Her leave-pay award was therefore reduced to R1,365.

Interest on the corrected leave-pay amount was ordered to run from the date of the Labour Court order.

The court also found that the commissioner had used the wrong period when calculating Tshiala’s alleged outstanding remuneration.

While the commissioner had found that her shifts were reduced from six to three as early as May or June 2022, Judge Gandidze found that the more probable date was February 2024.

The court said Tshiala would likely have approached the CCMA sooner if her shifts had been reduced in 2022.

It therefore ordered that the outstanding remuneration be calculated for three shifts per week from February 2024 until June 13, 2024.

The exact amount was left for the employer to calculate. If the parties could not agree, either party could approach the court for a determination.

Interest on the corrected outstanding-remuneration amount would run from the date of the Labour Court order.

The Labour Court dismissed the employer’s review application insofar as it sought to overturn the findings that Tshiala’s dismissal was substantively and procedurally unfair.

The court corrected the leave-pay and outstanding-remuneration awards but left the R15,120 compensation award intact.

Each party was ordered to pay its own costs.