The Commission for Conciliation, Mediation and Arbitration (CCMA). Picture: Oupa Mokoena
Image: File
The Commission for Conciliation, Mediation and Arbitration (CCMA) has found that a Durban man, who was employed by the Consulate General of India, Durban, for almost two decades, was unfairly dismissed and entitled to a year's compensation.
Siphiwe Mchunu, 58, formerly from KwaMashu, who was employed as a clerk, had approached the CCMA after he claimed he was "unfairly" dismissed last year.
According to the ruling, Mchunu was employed in 1996. Another contract was concluded in terms of which he was appointed as a clerk /typist on July 7, 2006.
He submitted that he was dismissed on April 29, 2024.
According to his evidence, prior to the dismissal he was called to the boardroom where his phone was confiscated and he was interrogated about his personal life.
He said one of the questions was related to how his son obtained a job in China.
Mchunu said he was detained until 11pm and then released without his phone.
He gave further evidence that he was issued with a letter of dismissal the following day. Mchunu said the letter of dismissal indicated that he was dismissed as provided for in paragraph 13 of his labour contract.
Paragraph 13 provided that 'the competent authority of the Government of the Republic of India reserves the right to terminate his services without assigning any reason whatsoever by giving one month’s pay in lieu thereof".
According to the ruling, the Consulate General of India failed to attend, or to be represented during the conciliation.
Joyce Nkopane, the CCMA Commissioner, in her ruling said the issue she had to determine was whether the dismissal of Mchunu was fair and whether it was the appropriate relief.
She said she found that his employment was terminated without any fair reason.
"The employer believes that it has a right to override the provisions of the Labour Relations Act (LRA). The right to fair labour practices is entrenched in section 23 of the Constitution of the Republic of South Africa. This constitutional imperative finds expression in section 185 of the Labour Relations Act 66,1995 (LRA), which provides that every employee has a right not to be unfairly dismissed and subjected to unfair labour practice.
"Further, not only does the LRA fulfil the constitutional imperatives but it also fulfils South Africa’s obligations as set out by the International Labour Organisation (ILO). I find that it is impermissible to contract out of the LRA and accordingly the dismissal of Mr Mchunu is substantively unfair,” she said.
Nkopane said based on the submissions before her there was no hearing or investigation.
"As indicated, section 188(1)(b) of the LRA requires that the dismissal must be effected in accordance with a fair procedure. Section 188((2) of the LRA obliges the trier of facts to consider the relevant code of good practice."
Nkopane said according to Item 4 of Schedule 8 - Code of Good Practice, dismissal provides that “normally, the employer should conduct an investigation to determine whether there are grounds for dismissal”.
"This does not need to be a formal inquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and the assistance of a trade union representative or fellow employee. After the enquiry the employer should communicate the decision taken and preferably furnish the employee with written notification of that decision.
"There was no compliance with the Code as there was no hearing or investigation in this matter. Even if the interrogation may be considered as an investigation, the employee was not afforded any time to prepare or to be represented. He was also not informed of the reason for termination of his employment. Accordingly he does not know if the outcome of the interrogation is the one that led to his services being terminated," she said.
Nkopane said having considered the submissions of Mchunu and the documentary evidence submitted, she found his dismissal to be both procedurally and substantively unfair.
"The applicant does not wish to be reinstated and in determining the appropriate relief I have considered the fact that the applicant worked for the respondent for almost 19 years. He lost the job that he dedicated his life to, in circumstances that are not justifiable as there is no fair reason for dismissal.
"Further, there was no attempt on the part of the employer to comply with fair labour practices. Mr Mchunu was left with almost four years to retire. His prospects of securing another employment are not good. I find that an award of twelve months compensation is fair and equitable in the circumstances,” she said.
According to the ruling, Nkopane said she found Mchunu's dismissal to be substantively and procedurally unfair, and that he must be compensated 12 months’ salary, calculated at his rate of pay at the time of dismissal.
Speaking to the POST this week, his legal representative, advocate Nyameko Jodwana said: "Mr Mchunu is feeling grateful as not everyone gets awarded compensation for 12 months. However, we will be instituting further action in respect of a breach of contract. We will be claiming for the rest of his contract as there are still a couple of years left until his retirement.”
The Consulate General of India did not respond at the time of publication.
Related Topics: