Brief Summary

Labour Law — Unfair dismissal — Review of arbitration award — Employee dismissed for alleged dishonesty and gross negligence in connection with lost municipal laptop — Commissioner finding dismissal substantively unfair and ordering reinstatement with limited backpay — Court reviewing the award, finding material contradictions in employee's testimony and failure of the Commissioner to adequately consider evidence — Dismissal deemed fair based on the nature of the misconduct and breach of trust in the employment relationship.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an application in the Labour Court to review and set aside an arbitration award issued under the auspices of the South African Local Government Bargaining Council. The review was dealt with as an application in terms of section 145 of the Labour Relations Act 66 of 1995.

The applicant was Mnquma Local Municipality (the employer). The first respondent was the South African Municipal Workers’ Union (SAMWU) on behalf of Ms Thandi Constance Hlazo-Bangani (the employee). The second respondent was Mr Mxolisi Alex Nozigqwaba N.O., the commissioner who issued the arbitration award. The third respondent was the South African Local Government Bargaining Council.

The matter arose from the employee’s dismissal following a disciplinary hearing on five misconduct charges. An unfair dismissal dispute was referred to arbitration, where the commissioner found the dismissal substantively unfair and ordered reinstatement with backpay limited to two months’ salary, while finding the dismissal not procedurally unfair. The municipality then launched the present review application seeking to set aside and substitute (or remit) the award.

The general subject-matter of the dispute concerned whether the commissioner’s findings—particularly on the charges of dishonesty and misrepresentation connected to the disappearance of a municipal laptop—were reviewable on the basis that the award was not reasonably connected to the evidence and outcome, and whether dismissal should ultimately be upheld as substantively fair.

2. Material Facts

Ms Hlazo-Bangani was employed by the municipality as Manager: Legal Services in the office of the Municipal Manager. She commenced employment on 2 November 2015 and was dismissed on 14 December 2021 after being found guilty on five disciplinary charges.

She had been issued with a municipal laptop for work purposes. On Friday, 9 July 2021, she drove to work, printed documents, and on her way home stopped at Ibika garage. After arriving home, it was discovered that the laptop was not in her vehicle.

On Monday, 12 July 2021, she and an intern searched her office for the laptop before cleaners arrived, but could not find it. She then attended the police station to report it stolen and was advised first to view CCTV footage at the garage where she suspected the theft occurred. She viewed the CCTV footage at Ibika garage with the garage manager and thereafter returned to the police station and made a sworn statement. In that statement she asserted, in substance, that the laptop had been in the boot of her vehicle and that upon arriving home she noticed it had been stolen, and she suspected it was stolen at the garage.

On 14 July 2021, she prepared and sent a memorandum to the municipality’s Director of Corporate Services with the subject “REPORT FOR STOLEN LAPTOP & OTHER DEVICES FOR WORK PURPOSES”, referring to the incident as theft involving municipal assets and indicating that a docket had been opened and that her statement was attached. Although the memorandum indicated the police statement was attached, it was only sent subsequently.

A disciplinary hearing was convened on five charges. These included gross negligence relating to loss of the laptop (with reference to section 78(1) of the MFMA), dishonesty and misrepresentation linked to the sworn statement and the CCTV viewing, gross insubordination for failing to attend meetings after being instructed by email, and gross misconduct for allegedly taking unauthorised leave.

It was common cause that the sworn statement referred to in the dishonesty charge was signed on 12 July 2021, after the CCTV footage had been viewed on the same day.

Ms Hlazo-Bangani did not participate in the disciplinary enquiry after preliminary points raised by her representative were dismissed. She was found guilty on all charges and dismissed, and her internal appeal failed. The value of the lost assets was deducted from her final payslips in two parts after dismissal.

At arbitration, the commissioner found the dismissal not procedurally unfair. On substance, the commissioner found she was guilty of charge 1 (gross negligence) and charge 5 (unauthorised absence), but held dismissal was not justified because the municipality’s policy contemplated repayment for lost assets and warnings as remedies. The commissioner found her not guilty on charges 2, 3, and 4 (dishonesty, misrepresentation, and insubordination), and ordered reinstatement with limited backpay.

In the review, although the municipality also did not accept the outcome on charge 4, its principal focus was on charges 2 and 3, namely the dishonesty and misrepresentation charges.

3. Legal Issues

The central legal questions were whether the arbitration award was vitiated by reviewable irregularity under section 145 of the Labour Relations Act 66 of 1995, in particular whether the commissioner’s conclusions (especially the acquittal on dishonesty and misrepresentation) were unsupported by, or inconsistent with, the material evidence and therefore not reasonably connected to the outcome reached.

A further issue was the appropriate remedy if the award was reviewable, namely whether the Labour Court should substitute the award with a finding that the dismissal was fair, or remit the matter for a hearing de novo at the bargaining council.

The dispute primarily concerned the application of legal standards of review to the factual record, including evaluation of whether the commissioner properly engaged with material evidence, assessed credibility and contradictions, and reasoned from the evidence to the outcome. It also involved an evaluative judgment concerning trust, honesty, and misrepresentation in the employment relationship, and whether the proven misconduct justified dismissal.

4. Court’s Reasoning

The Court approached the review on the basis that it was brought under section 145 of the Labour Relations Act 66 of 1995, and assessed whether the commissioner’s award was one that could be sustained on the evidence and reasoning reflected in the record.

In outlining the applicable employment principles, the commissioner had recorded that the employment relationship is founded on trust, that employees are expected to act with honesty in dealing with the employer’s affairs, and that dishonest conduct involves moral turpitude that can damage the trust relationship. The Labour Court accepted those general propositions as part of the framework, but found that the commissioner’s application of them to the evidence was materially deficient.

A central basis for intervention was that, in deciding the dishonesty and misrepresentation charges, the commissioner accepted Ms Hlazo-Bangani’s version in chief without engaging with contradictions and concessions that emerged during cross-examination. The Court held that the award did not reflect a reasoned engagement with material contradictions between (i) what was put to the municipality’s witnesses during cross-examination and (ii) what Ms Hlazo-Bangani later advanced during her own testimony, including new assertions that were not in her sworn statement and were not put to the municipality’s witnesses.

The Court highlighted that Ms Hlazo-Bangani’s sworn statement indicated that the laptop was in the boot and was stolen from there, whereas her later evidence included uncertainty about whether the laptop had been in the boot or behind the seat (where she often placed it), and uncertainty about whether the laptop had been stolen, lost, or misplaced. The Court regarded these inconsistencies as material because they bore directly on whether her prior representations to the employer were accurate and complete, and whether she had misled the employer regarding the circumstances of the loss.

The Court further noted that the evidence of the garage manager was that, having viewed the CCTV footage with Ms Hlazo-Bangani, it was evident from the aerial view that no incident occurred in relation to her vehicle at the garage. The Court considered that Ms Hlazo-Bangani’s accounts about what could be seen on the CCTV footage contradicted what had been put to that witness, and that the commissioner did not properly address these discrepancies.

Another material aspect of the Court’s reasoning was its rejection of the commissioner’s suggestion that the municipality should have undertaken further engagement or investigation with Ms Hlazo-Bangani before charging her. The Court stated that no evidence had been presented to establish such a duty, particularly where Ms Hlazo-Bangani had provided the statement for the employer to assess the disappearance of the municipal asset and did not provide an updated statement or indicate a desire to do so.

The Court considered it significant that Ms Hlazo-Bangani held a senior legal position as Manager: Legal Services and was an admitted advocate, which the Court treated as relevant to the expectation of heightened honesty and full disclosure in her dealings with the employer, especially where her statement was intended to assist the employer in determining whether her conduct was negligent or intentional.

Against this background, the Court concluded that the commissioner’s finding that Ms Hlazo-Bangani was not guilty of dishonesty and misrepresentation was contradicted by her own admissions that her statement contained inaccuracies and omissions. The Court reasoned that the statement insisted the laptop had been stolen from the boot, while her evidence conceded she was unsure what happened to the laptop, that she searched for it at the office, and that she could not recall where exactly it had been placed in the vehicle.

The Court also attached significance to the implications of whether the laptop was left in the boot or behind the seat. It reasoned that leaving the laptop behind the seat in view could have supported negligence allegations (with financial consequences), whereas theft from a locked boot would not have had the same implication. The Court found that, despite the sworn statement asserting the boot version, Ms Hlazo-Bangani’s evidence introduced uncertainty that undermined the truthfulness and completeness of her original account.

In the Court’s assessment, these failures to engage with material evidence and contradictions meant the award was not reasonably connected to the outcome, and fell outside the bounds of reasonableness. The Court accepted that, on the evidence, Ms Hlazo-Bangani was guilty of misrepresentation, that she misled the employer into believing the laptop had been placed in the boot and stolen at Ibika garage, and that the evidence of the garage manager was clear and should be preferred to her contradictory testimony. On this basis, the Court held that her dismissal should be upheld.

On costs, the Court exercised its discretion and held that, although the award was to be set aside, the union could not be blamed for defending an award in its favour. It therefore made no costs order.

5. Outcome and Relief

The Labour Court reviewed and set aside the arbitration award issued under case number ECD122023 dated 18 April 2023.

The Court substituted the award with an order that the dismissal of Ms Hlazo-Bangani was procedurally and substantively fair.

The Court made no order as to costs.

Cases Cited

No reported cases were cited in the judgment.

Legislation Cited

Labour Relations Act 66 of 1995 (as amended).

Local Government: Municipal Finance Management Act 56 of 2003 (section 78(1), as referenced in the disciplinary charge).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Labour Court held that the commissioner’s arbitration award was reviewably defective because it failed to engage with material contradictions, concessions, and inconsistencies in the employee’s evidence concerning the circumstances in which a municipal laptop went missing and the accuracy of her sworn statement and report to the employer. The Court found that the award did not fall within the bounds of reasonableness on the record and that, on the evidence, the employee was guilty of misrepresentation (and related dishonesty concerns) sufficient to uphold dismissal. The award was set aside and substituted with a finding that the dismissal was procedurally and substantively fair, with no costs order.

LEGAL PRINCIPLES

The judgment applied the principle that an arbitration award issued under the Labour Relations Act may be reviewed and set aside under section 145 where the commissioner’s approach to the evidence and reasoning results in an outcome that is not reasonably connected to the evidentiary material and conclusions required.

It reaffirmed that the employment relationship is premised on trust, and that honesty in dealings with the employer is expected. Dishonest conduct may include withholding information, making false statements, or misrepresentations intended to mislead the employer, and such conduct may damage the trust relationship underpinning employment.

It emphasised that the proper determination of dishonesty- and misrepresentation-related misconduct requires engagement with material contradictions, concessions under cross-examination, and differences between what is put to witnesses and what is later testified to. A failure to grapple with these aspects, and to reason through their implications, may render the resulting award unsustainable on review.

It further reflected that the nature of an employee’s role may be relevant in evaluating expectations of candour and integrity: where an employee occupies a senior legal position, the expectation of full and accurate disclosure in matters affecting the employer’s assets and potential culpability may be heightened.

Swartbooi v Commission for Conciliation, Mediation and Arbitration and Others (PR169/23) [2026] ZALCPE 2 (21 January 2026)