After 11 years, fired woman gets her job back - but now she’s too old to take it
Dismissed on ‘trumped-up’ charges, she finally won her case. Only trouble is, she’s now retired
More than 11 years after she was dismissed on “trumped-up charges”, and post retirement, a long-serving employee of Old Mutual Bank in Durban has won her case to be reinstated.
In a precedent-setting judgment, Durban Labour Court Judge David Gush ordered that Rumba Samuel, who had worked at the bank for 26 years prior to being fired in 2007 at the age of 56, ought to be reinstated in spite of the passage of time.
Because Samuel has since passed the regulated retirement age of 61 at the bank she will not be physically reinstated, but entitled to her salary and all benefits from May 2007 until the end of August 2012 – when she would have gone on pension.
The matter came before Judge Gush as an appeal from the CCMA where Samuel won her case – but instead of being allowed to return to her job as a receptionist, the commissioner, Jabulani Ngwane, ordered instead that she be compensated by 12 months’ pay, the maximum award in terms of the Labour Relations Act (LRA).
Ngwane, in his ruling following the arbitration hearing – which Judge Gush noted “took a startling four years”– said he believed Samuel should not go back to work because it would not be conducive to good workplace relations and would “scratch open old wounds”.
There was also evidence that there were “new systems” in place and it would take six months of training for Samuel to catch up. He also took into account that Samuel was very close to retirement age.
But the judge said Ngwane was wrong. He said Samuel had wanted to be reinstated and Ngwane had “punished” her for having been unfairly dismissed on “probably trumped-up charges” which were only laid after she lodged a grievance against her supervisor, Prem Naidoo.
The judge noted that the chairperson of the internal disciplinary hearing, who found Samuel guilty of four out of nine charges, had not attended the arbitration hearing to explain his rationale.
Naidoo, on the other hand, had attended religiously and had heard all the accusations levelled against her but, in the words of Ngwane, did not “bat an eye” and “sat so quietly like a statue”.
Regarding the issue of the bad relationship between Samuel and Naidoo, the judge said Samuel could have been employed in another department.
The bank argued that Samuel could not be reinstated past retirement age and she was effectively seeking compensation which would then be in excess of the legal limit in the LRA.
“The difficulty with this argument is that she had not reached retirement age at the time of her dismissal or at the time the arbitration was concluded,” the judge said.
“If the commissioner had ordered reinstatement, she could have gone back to work. Just because she has now passed that age does not render a reinstatement order incompetent.
“That would only serve to prejudice the rights of employees who are dismissed shortly before their retirement or in circumstances where a review application is delayed beyond the employee’s retirement age. This is not an outcome contemplated by the LRA and most certainly such an outcome would be unfair,” he said.