- Mushrooms and Things dismissed Magwanya for taking leave during a company-imposed COVID-19 leave freeze.
- The CCMA and Labour Court found the dismissal was both substantively and procedurally unfair, ordering full reinstatement and back pay.
- The case highlights employer obligations to fair process, even during extraordinary circumstances like pandemic-related staffing pressures.
Nkosemvele Hubert Magwanya had worked as a truck driver for Mushrooms and Things since March 1998, earning R10 850 a month.
On 5 November 2021, the employer announced a leave freeze from 13 December 2021 to 15 January 2022, citing staff shortages after the COVID-19 lockdown.
Despite notices and reminders, Magwanya applied for leave during this period. His application was not approved. When he did not report for work on 9 December 2021, he told his manager he was on leave and refused to return, insisting he was entitled to his usual December leave.
The dispute went to the CCMA. After nine arbitration sessions, Commissioner Gerald Jacobs found that Magwanya had been dismissed and that the dismissal was both substantively and procedurally unfair. Jacobs ordered that Magwanya be reinstated with back pay. Mushrooms and Things refused to comply.
In the Labour Court, Mushrooms and Things argued that Magwanya had repudiated his contract by being absent without permission. The company’s representative, Harry Petersen of Federated Hospitality Association of South Africa, said Magwanya had told his manager, ‘I’m just going to take leave and you can do what you want, and if you give me a warning, I will take you to the CCMA.’
Petersen also said the company had to hire three extra drivers to cover Magwanya’s routes, as mushrooms were rotting in trucks and restaurant deliveries were at risk.
Labour Court upholds dismissal finding
Judge L Gura rejected the employer’s arguments, stating that whether the employer described the termination as a contract repudiation or not, it amounted to a dismissal under the Labour Relations Act.
The judge quoted the SABC case, noting that if employers could avoid the consequences of unfair dismissal simply by using contractual language, employees would not be protected. The judge said that statutory protection exists precisely because the law of contract does not always protect employees against unfair dismissal.
Magwanya was 62 when the dispute began. The Labour Court pointed out that, under case law, an employee who does not return to work within a reasonable time after a reinstatement order may lose the right to reinstatement.
Judge Gura said it would not be fair or reasonable to expect employers to keep a position open indefinitely for an employee who was unfairly dismissed and awarded reinstatement, only for the employee to return whenever it suited them.
The court also noted that Magwanya had since reached retirement age, which made practical reinstatement more complicated.
Mushrooms and Things also challenged the CCMA process, saying Magwanya’s representative lacked proper authority and that the commissioner had been biased.
Judge Gura rejected these claims, saying there was nothing irregular about the representation and that the commissioner had analysed the evidence correctly and applied both common law and statutory principles.
Sanction and outcome
Judge Gura confirmed the CCMA’s order of reinstatement with back pay from 9 December 2021. The court ordered Mushrooms and Things to comply, warning that refusing to reinstate an employee is a further breach of the Labour Relations Act and may lead to extra costs.
Judge Gura concluded by stating that the Labour Court exists to advance economic development, social justice, labour peace and workplace democracy by resolving disputes effectively and substantively.
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