The Durban Indian Consulate's claim of “diplomatic immunity” in a matter before the Commission for Conciliation, Meditation and Arbitration, lodged by a former employee who was summarily dismissed apparently on allegations he was a “spy”, has failed.
CCMA commissioner Joyce Nkopane has ruled the consulate cannot enter into labour contracts which offend the fair labour provisions in both the constitution and the Labour Relations Act (LRA) when employing South Africans to work in the country.
This, she said, meant Siphiwe Mchunu’s dismissal, without a hearing or without being given reasons, after almost 19 years service, was both substantially and procedurally unfair.
Mchunu stated during the hearing he did not want to be reinstated. Given that, Nkopane ordered the consulate to pay him 12 months' salary in compensation.
Mchunu took the matter to the CCMA after his dismissal in April 2024, but had to apply for condonation for the late referral of the dispute, which was granted by another commissioner.
In those proceedings, he said because of the trauma and allegations against him, he had left Durban and gone into hiding.
Attorney Tashya Giyapersad for the Indian Consulate, argued the CCMA had no jurisdiction to hear the matter.
She argued the Foreign States Immunities Act precluded litigation relating to the employment of diplomatic, administrative, technical and service staff of any foreign mission in South Africa.
Mchunu’s employment contract made it very clear he was subject to the rules governing India and not those of South Africa.
She said the termination was “sensitive in nature and pertains to internal processes and cannot be discussed in a forum such as the CCMA or any such South African-based forum of court”.
After Mchunu was granted condonation for the late filing of his grievance, the matter came before commissioner Nkopane, first to determine if the CCMA had jurisdiction to hear it, and then to determine the unfairness or otherwise of Mchunu’s dismissal.
She noted the Indian Consulate had not participated in either proceedings though it had been properly notified.
In the recent ruling on the question of jurisdiction, she said, it was trite embassies and consulates enjoyed general immunity from South African courts, but “this does not apply to certain commercial and domestic acts” and exceptions were provided for in the Foreign States Immunities Act.
This included proceedings relating to contracts of employment if they were entered into in South Africa, if the work was performed in South Africa and the individual was a South African citizen and not a citizen of any other foreign state.
The right to fair labour practices is entrenched in the constitution and the LRA which provides that every employee has a right not to be unfairly dismissed
— CCMA commissioner Joyce Nkopane
These provisions applied to Mchunu.
She said Mchunu had signed two contracts, one in 1996 and another in 2006. The latter stated “the competent authority of India reserves the right to terminate his services without assigning any reason whatsoever by giving one month’s payment in lieu thereof”.
“The question that raises is whether it is permissible for the employer to terminate his services in this manner,” Nkopane said.
“The right to fair labour practices is entrenched in the constitution and the LRA which provides that every employee has a right not to be unfairly dismissed,” she said.
“It is a fact in employment contracts, the parties do not have equal bargaining power. And the protections set out in the LRA seek to protect the weaker party. I accordingly find it is impermissible to contract outside labour law and in particular the LRA in this instance.”
She also noted the contract stated a “grievance” — as opposed to dismissal — would be settled according to the government of India’s rules and regulations and not according to local laws.
“It is clear he was employed as a typist and his duties or functions cannot be said to be functions that are performed by a sovereign state. Put differently, his job is not directly related to the sovereign powers of a foreign state as envisaged by the Foreign States Immunities Act,” she said, ruling the CCMA had jurisdiction to hear the matter.
On the merits, Nkopane said Mchunu had been called into the boardroom where his phone was confiscated.
“He was interrogated about his personal life. One of the questions related to how his son obtained a job in China. He was detained until 11pm and released without his phone. The following day he was issued with a letter of dismissal.”
Nkopane said this was neither substantively nor procedurally fair.
“The employer terminated his employment without any fair reason. It believes it has a right to override the provisions of the LRA. The right to fair labour practices is entrenched in the constitution and this constitutional imperative finds expression in the LRA which provides that every employee has the right not to be unfairly dismissed. This is also in line with South Africa’s obligations as set out by the International Labour Organization.
“There was no hearing or investigation. 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 the 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.”
Taking into account the behaviour of the consulate, that Mchunu worked for them for almost 19 years “a job he had dedicated his life to” and the fact he was close to retirement, she believed compensation of 12 months’ salary was fair and equitable.
TimesLIVE Premium previously reported on a memorandum Mchunu wrote to the department of international relations and cooperation (Dirco) in which he claimed all the local staff were called to an urgent meeting at the end of April last year where the head of chancery Prem Sagar, made them all hand over their phones.
He then transferred information from the phones to his own device.
Later that day, he was interrogated, asked about documents he had on his phone, about his bank accounts and about his son, who was working as a teacher in China.
He said the issue of his son’s employment had been raised four years previously “and I found myself facing the same line of questioning, this time in a formal setting within the boardroom, with six officials present”.
He said he concluded they believed he was involved in espionage.
He said while being interrogated his car had been searched. His phone had never been returned to him.
He said on the day he was dismissed, he had been physically searched and escorted into the boardroom where officials demanded to see his bank statements.
When he was escorted out of the building later, he was told his dismissal was because of “security breaches”.
TimesLIVE Premium approached attorney Giyapersad and the consulate for comment, but it had not been received at the time of publication.
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