- Franchise operator Broad Market Trading 232 failed to overturn a CCMA unfair dismissal award.
- The alleged racist remark happened after the waitress had already been dismissed.
- Compensation remains payable, although the leave pay and wage award were partially corrected.
A Cape Town Mugg & Bean franchise operator has failed to overturn a CCMA ruling that it unfairly dismissed one of its waitresses after accusing her of lying about reduced shifts and unpaid wages.
The Labour Court found that Broad Market Trading 232 (Pty) Ltd, trading as Mugg & Bean Lifestyle on Kloof, dismissed Marie Tshiala before the alleged racist remark it later relied on as justification.
The court held the franchise failed to show a fair reason for ending her employment and confirmed that dismissing her without a disciplinary hearing was procedurally unfair.
CCMA claim triggered the confrontation
Tshiala had worked as a waitress at Mugg & Bean Lifestyle on Kloof since November 2021. The dispute began after she referred a CCMA claim, alleging her shifts had been cut from six to three a week and that she was owed outstanding pay.
On 13 June 2024, general manager Premilla Anvary confronted Tshiala after receiving the CCMA papers, accused her of lying in the claim and told her to leave the restaurant. The CCMA matter had been set down for hearing on 24 June.
Tshiala maintained she was dismissed for exercising her labour rights, while the franchise argued she had a history of disrespectful, aggressive and insubordinate behaviour towards managers and colleagues.
The timeline that destroyed the defence
The franchise’s review application centred on an alleged racist comment in which Tshiala told Anvary, “This is not India.”
The Labour Court accepted the remark was made, but found its timing was fatal to the employer’s case. Judge T Gandidze said Tshiala commented as she was leaving the premises, after she had already been told to go. This meant it could not be used after the fact as a reason for her dismissal.
The court also noted that video footage of the confrontation, played during the CCMA arbitration, did not support the employer’s decision to dismiss Tshiala.
No disciplinary hearing
It was accepted that Tshiala was dismissed without any disciplinary hearing. The franchise argued a hearing would have served no purpose because the alleged misconduct happened in front of management.
The Labour Court rejected that, finding the dismissal was both substantively and procedurally unfair. As a result, the CCMA’s award of three months’ compensation, amounting to R15,120, remains in force.
Review only partly succeeded
Although Broad Market Trading 232 failed to overturn the unfair dismissal finding, it did manage to correct some parts of the financial award.
The Labour Court reduced Tshiala’s leave pay from R3,822 to R1,365 after finding she had accrued 7.5 days of annual leave by the time her employment ended.
It also set aside the CCMA’s award of R56,740.32 for reduced shifts, ruling that outstanding remuneration must be calculated only for the period from February 2024 until 13 June 2024.
The franchise also alleged Tshiala had been under investigation for credit card fraud and theft, but the court declined to entertain those claims, noting that no legal proceedings had ever been brought against her.
Each party was ordered to pay its own legal costs.
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