- Long-serving farm worker reinstated after Labour Court finds dismissal for alleged unauthorised access was unfair.
- Relatives and visitors had the legal right to enter the farm under ESTA.
- The court found that the employer's misconduct charges had no merit.
A long-serving farm worker who was dismissed for allegedly allowing unauthorised people onto a farm has successfully secured his reinstatement after the Labour Court found those individuals had every right to be there.
The Labour Court in Gqeberha dismissed an application by Madalas Rest (Pty) Ltd to review and overturn a CCMA arbitration award that reinstated Mzukisi Petrus Mkhavu. The court found that Mkhavu's relatives and a family visitor at the centre of the case were legally entitled to access the property under the Extension of Security of Tenure Act (ESTA). Judge M Makhura held that the misconduct charges against Mkhavu could not be upheld.
Dismissed over alleged unauthorised access
Mkhavu had lived and worked on Rhodene Farm near Kirkwood since 1984. When Madalas Rest took over the farm in 2020, he faced disciplinary action for allegedly not reporting or preventing unauthorised people from coming onto the property.
The allegations centred on his son, Andile Tambo, his nephew, Devan Mkhavu, and Shaunton Gouws, the grandson of another recognised farm resident. The company accused Mkhavu of letting them onto the farm without authorisation on several occasions.
He was first given a suspended dismissal before being charged again for essentially the same allegations. After a second disciplinary hearing, he was dismissed in April 2023.
Mkhavu took both an unfair labour practice dispute and an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The commissioner found the dismissal was substantively unfair, ordered that he be reinstated with limited back pay, and awarded him compensation equal to eight months' pay for the unfair labour practice. Madalas Rest then went to the Labour Court to challenge this decision.
Relatives and visitors had legal right to enter
Judge Makhura found that the employer’s own evidence actually weakened its case. The judgment notes that the farm operator admitted he had no objection to Andile and Devan being on the property, saying, “pedestrians are welcome to come onto the property.”
However, the employer argued that they should only enter through the pedestrian gate and not drive in through the vehicle entrance. Judge Makhura rejected this argument. “That distinction is illogical and unsustainable,” he said.
The judge held that because Andile and Devan were recognised occupiers under ESTA, their entry onto the farm could not be considered unauthorised just because they arrived in a vehicle. “Consequently, the charges claiming that the employee allowed Devan and Andile onto the property as unauthorised persons, or failed to prevent their access, had no merit.”
ESTA protects bona fide visitors
The court reached the same conclusion for Shaunton Gouws, who had visited his grandmother on the farm. Judge Makhura pointed out that Mkhavu’s claim that he had informed the farm manager about the visit was never disputed.
The judge said ESTA clearly recognises the right of farm occupiers to receive genuine visitors at reasonable times, as long as any reasonable conditions set by the landowner are met. “There was no evidence that Shaunton was anything other than a bona fide visitor,” the judgment states.
Employer could not rely on new allegations
The company also tried to rely on incidents that were not listed in the disciplinary charge sheet. Judge Makhura said these allegations could not be used to justify Mkhavu’s dismissal because they were never formally put to him during the disciplinary process.
The court found there was no legal basis for relying on incidents that were not part of the charges Mkhavu had been asked to answer.
Review application fails
After weighing all the evidence, Judge Makhura concluded that the CCMA commissioner had made a reasonable decision. “I conclude that the award satisfies the reasonableness test and the review application must fail,” the judge said.
The Labour Court dismissed Madalas Rest’s review application and made no order as to costs, leaving the CCMA’s reinstatement order and compensation award in place.
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