A double blow for Bisque it: substantive and procedural unfairness 

The award in Amorie Bloemarts vs Mesrabite (Pty) Ltd t/a Bisque it CCMA WECT16199-23 was handed down on 30 January 2024.

Bisque it operates as a restaurant in the coastal town of Hermanus and the applicant, Amorie Bloemarts, was employed as the general manager from 1 March 2023. She was dismissed on 9 October 2023 while earning a monthly salary of R17 000,00.

2024/03

By Lize Coetzee, Partner at Coetzee Attorneys Inc. 

The applicant was requested to resign but declined the request and was, therefore, summarily dismissed. She contested the substantive and procedural fairness of her dismissal and sought maximum compensation.

Section 192 of the Labour Relations Act 66 of 1995 (‘LRA’) provides that in any proceedings concerning an alleged unfair dismissal an employee must establish the existence of the dismissal. Once this has been established, the onus is then on the employer to prove that the dismissal was fair (both procedurally and substantively).

During the arbitration proceedings, Mr Kalla alleged on behalf of the respondent that the applicant was dismissed due to financial mismanagement, staff mismanagement, and operational challenges with the restaurant.

Section 192 of the Act imposes two requirements on the respondent regarding the substantive fairness of dismissal. The respondent must establish, as per item 7 of the Code of Good Practice Schedule 8 to the Act (the Code), that the applicant was guilty of misconduct and that dismissal was an appropriate sanction.

The commissioner found that the allegations against the applicant lacked substantiation. One of the allegations concerned discrepancies in petty cash, which the respondent regarded as theft. Later during the proceedings, Mr Kalla adjusted the initial amount to a significantly lower amount, indicating an error in assessing the petty cash used by the applicant. The respondent’s concession regarding the amount of petty cash allegedly stolen, therefore, cast doubt on the reliability of his testimony.

Mr Kalla subsequently also admitted that the money spent by the applicant was for business purposes, which impacted his overall testimony. The commissioner deemed Mr Kalla neither a credible nor reliable witness. Mr Kalla also mentioned complaints against the applicant concerning staff morale, racial matters, misuse of business funds for paying the locksmith, and disruptive behaviour during a team-building meeting. The applicant denied allegations of disruptive behaviour and misuse of business funds.

The commissioner noted that Mr Kalla did not call witnesses to testify to the alleged complaints, the applicant was not given an opportunity to respond or clarify matters, and Mr Kalla had chosen not to take action at first, hoping that the situation would resolve itself.

The Code stipulates that for dismissal to be substantively fair, the employee must be aware or reasonably aware that their conduct was wrongful and could lead to dismissal. In this case, the applicant was not informed of any misconduct allegations or that her conduct constituted a transgression. It is presumed that had she been informed, she would have offered an explanation, and the issues could have been addressed and resolved. Her dismissal was ruled to be substantively unfair.

Regarding procedure, the respondent’s actions were ruled inconsistent with the Code of Good Practice: Dismissal, rendering the dismissal procedurally unfair as well. There was no dispute that the applicant was not allowed to present her case in response to the allegations against her.

In determining the appropriate compensation, the commissioner considered that the applicant’s dismissal was both substantively and procedurally unfair, and that she had been employed for a brief period of seven months. Hence, the applicant was awarded four months’ compensation.

This case underscores the paramount importance for employers to ensure that employees are informed of any alleged misconduct and are given the chance to present their side of the story. Neglecting to adhere to proper procedures or unjustly terminating an employee can lead to costly arbitration awards.

Article published with the kind courtesy of Coetzee Attorneys Inc., for more information please visit – www.coetzee-attorneys.com 

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

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