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[2026] ZALCCT 25
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City of Cape Town v SAMWU obo Mlungwana and Others (C675/2023) [2026] ZALCCT 25 (19 February 2026)
THE LABOUR COURT OF SOUTH
AFRICA, CAPE TOWN
Case
No: C675/2023
(1)
Reportable Yes/No
(2)
Of interest to other Judges: Yes/No
(3)
Revised
In the matter between:
THE CITY OF CAPE
TOWN
Applicant
and
SAMWU
obo MKHULULI MLUNGWANA
First Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
COMMISSIONER
URSULAR BILBRING N.O
Third Respondent
Heard:
03 July 2025
Delivered:
19 February 2026
JUDGMENT
MAPOMA,
AJ
[1]
This
is an opposed review application in terms of section 145, read with
section 158(1)(g) of the Labour Relations Act
[1]
(the LRA). The City of Cape Town (the City), seeks to review and set
aside the arbitration award that was delivered by the third
respondent (the arbitrator) on 6 November 2023, in which the
commissioner found that the dismissal of the first respondent
(Mlungwana,
represented by the South African Municipal Workers Union
(SAMWU)) was procedurally fair but substantively unfair, and ordered
that
the applicant reinstate the employee with no back pay. The City
also seeks condonation for the late launching of this application.
[2]
The review sought only relates to the
arbitrator’s finding that the dismissal is substantively
unfair. The thrust of the review
application is that, based on the
various review grounds, the commissioner’s award is irrational
and is one which a reasonable
decision maker faced with the same
facts could not make.
[3]
The application is opposed by the first
respondent, trade union on behalf of its member, the employee. The
basis of the opposition
is that the award is within the bounds of
reasonableness and thus unimpeachable, for it is not that which a
reasonable decision
maker could not make.
[4]
The facts are fairly straightforward and
can be summarised as follows. Mlungwana was employed by the City as
an administrative clerk,
stationed at the City’s Drivers
Licence Testing Centre (the DLTC) at New Ottery, Cape Town. He was
dismissed on 7 February
2023, pursuant to a disciplinary hearing, on
in which he was found guilty of committing an act of gross dishonesty
when he claimed
a two hour overtime, stating that he worked from
16h00 until 18h00 when he left the workplace at 17h46, meaning that
he worked
14 minutes less than what he claimed.
[5]
The City took a view that Mlungwana’s
incorrect recording of the knock-off time as 18h00 on the manual
clock in/out instead
of 17h46 conduct showed dishonesty and that
dismissal was an appropriate sanction therefor. He was found guilty
of misconduct and
consequently dismissed. Crucially, Mlungwana’s
supervisor, Tandi Phadi, who also left the workplace earlier than the
claimed
knock-off time was not charged for the same misconduct.
[6]
Aggrieved by the dismissal, the South
African Municipal Workers Union (SAMWU), acting on behalf of its
member, Mlungwana, referred
a dispute of unfair dismissal to the
bargaining council, and the matter ended up in arbitration. Having
heard and considered the
matter, the arbitrator delivered an award
where she found that the City succeeded in proving on the balance of
probabilities that
Mlungwana was guilty as charged for incorrectly
recording that he worked until 18h00 when in fact he worked until
17h46, that is
14 minutes short of the claimed time.
[7]
The arbitrator found that the dismissal was
procedurally fair. She however found that based on the totality of
the circumstances
in determining the fairness of the sanction, the
dismissal was substantively unfair, for she reasoned that the
sanction of dismissal
was too harsh and inappropriate in the
circumstances of the case. She then directed that Mlungwana be
re-instated without back-pay.
[8]
In arriving at the decision, the arbitrator
reasoned that in deciding on the appropriateness of dismissal, she
noted that Mlungwana’s
action was dishonest, for he
misrepresented the time by 14 minutes. She however found that she
worked under her supervisor with
whom she left earlier together. The
arbitrator found that, based on the facts which are common cause,
Mlungwana’s supervisor
committed the same offence for she
misrepresented her time by nine minutes. She found that contrary to
the City’s “zero
tolerance” policy on dishonesty,
the City applied the policy inconsistently, in that by saying that it
is acceptable to be
dishonest by 9 minutes and dishonest by 14
minutes on a “zero tolerance” policy is contradictory.
[9]
The arbitrator noted that Phala was the
supervisor, and that Mlungwana followed her lead. According to the
arbitrator, by condoning
Phalas conduct on zero tolerance and
distinguishing her from Mlungisi was inconsistent application of
discipline and was thus irrational
and arbitrary, more so considering
that Phala was a supervisor and thus a senior employee. This,
according to the arbitrator’s
reasoning, made the sanction of
dismissal to Mlungwana too harsh and unfair. The arbitrator also
considered that Mlungwana had
a clean disciplinary record.
[10]
Aggrieved by the arbitrator’s finding
that the dismissal was substantively unfair and directing the
re-instatement of Mlungwana,
the City approached this Court seeking
the review and setting aside of the award in this regard. This is the
bone of contention
that brought about this review.
[11]
Having noted that the review application
was lodged four days out of time, the City applied in terms of
section 145(1A) of the LRA
for condonation of the late filing of the
review application. While the respondent filed opposing papers
against the condonation
application, the respondent did not pursue
the opposition during the hearing of the matter and same was left in
the hands of the
Court. Having considered the matter, the Court is
satisfied that the applicant met all the requirements for the
condonation sought
and as such established good cause. Accordingly,
condonation is granted for the late filing of the review application.
[12]
In attacking the award, the City advanced
as grounds of review that the arbitrator ‘
erred
in findings of fact; committed errors of law; failed to apply her
mind to the issues before her; failed to demonstrate the
rational
and/or reasonable connection between the evidence before her and the
eventual findings she made’
. To
round it off, the City contends that the arbitrator’s award is
accordingly irrational and is not one which a reasonable
decision
maker could have made based on the evidence that was placed before
her and thus falls to be reviewed and set aside.
[13]
In its supplementary affidavit, apart from
regurgitating and elaborating on the above review grounds, the City
added that the arbitrator
committed a reviewable irregularity and
reached an unreasonable outcome by considering and relying on the
plea of inconsistency
and finding that the sanction of dismissal was
substantively unfair when such a plea was neither properly presented,
ventilated
not tested before her.
[14]
The respondent opposes the application on
the basis that the award is amply reasonable, for according to the
first respondent, it
is that which a reasonable arbitrator could have
made. In particular, the respondents contend that it was common cause
that the
employee’s supervisor was not charged in circumstances
where she committed the same offense for which Mlungwana was
dismissed
and as such the disciplinary policy of zero tolerance was
inconsistently applied.
[15]
The central issue for determination is
whether the award contained reviewable defects that make the award an
unreasonable decision
which no reasonable decision maker could have
made. This has to be considered in light of the review grounds
advanced by the City.
[16]
In my view, the facts as gleaned from the
evidence are clearly set out and properly analysed in detail by the
arbitrator. The grounds
of errors of fact, nor errors of law that are
postulated in the application papers were not argued with any force
during the hearing.
I have not found any such errors. The central
issue that the City relied on in attacking the impugned decision is
that the arbitrator
firstly
,
committed irregularity in allowing the employee to lead new evidence
of inconsistency late during re-examination, and
secondly
,
reached an unreasonable outcome by considering the plea of
inconsistency which was not properly placed before her.
[17]
Section 138(1) of the LRA gives a wide
discretion to the arbitrator in conducting the proceedings in a
manner that would enable
her to determine the dispute fairly and
quickly with minimum legal formalities. The section provides as
follows:
“
(1)
The commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate
in order to determine the
dispute
fairly and quickly, but must deal with the substantial merits of the
dispute
with the minimum of legal formalities.
(2)
Subject to the discretion of the commissioner as to the appropriate
form of the proceedings,
a party to the dispute may give evidence,
call witnesses, question the witnesses of the other party, and
address concluding arguments
to the commissioner”
[18]
In my view, while the
record shows that the issue of inconsistency was raised by the
employee at the stage mentioned by the City,
nothing turns from that
on irregularity of the proceedings, given the wide discretion given
by the statute to the commissioner.
It was within her powers, to in
her wisdom, allow that evidence to the extent that it dealt with the
substantial merits of the
dispute, namely, whether the dismissal was
unfair. Importantly, the facts relating to the issue of inconsistency
are not in dispute.
Further, the City was at liberty to lead further
evidence if it disputed those facts but elected not to. Thus, I find
no merit
in the argument of gross irregularity on the stated ground.
[19]
More precisely, o
n
the facts it is not in dispute that on the day in question, Mlungwana
left the workplace at the same time as his supervisor, and
that both
left the workplace before the claimed knock-off time. In so doing
they both committed a misconduct for which Mlungawana
was dismissed.
It is also not in dispute that the supervisor was not charged for the
misconduct which they both committed. The
explanation offered by the
City for not taking disciplinary action against the supervisor was
that she left less than 10 minutes
(9 minutes) earlier than the
claimed time whereas Mlungwana left 14 minutes earlier. The
arbitrator was not convinced that this
made any difference as they
both breached the policy and that the City had a ‘zero
tolerance’ policy on such a breach,
hence the arbitrator
reasoned that the selective disciplinary action constituted
substantively unfair dismissal.
[20]
In short, this is a case of con
temporaneous
inconsistency, which arises where two or more employees
have
committed the same act of misconduct at the same time, but not all
are subjected to disciplinary action, and only some are.
The
foundational principle underlying the requirement of consistency in
the application of discipline in the workplace is traceable
from
section 9, read with section 23 of the Constitution of the Republic
of South Africa, 1996 (the Constitution). Section 9 guarantees
everyone to be equal before the law, and a right to equal protection
and benefit of the law. This section is complimented by section
23 which guarantees everyone the right to fair
labour
practices. In the work context, the principle of consistency
postulates that when fostering discipline like must be treated
alike
unless the employer can justify the differentiation of treatment.
[21]
In
Cape
Town City Council v Masitho and Others,
[2]
the
Labour Appeal Court,
per
Nugent AJA (as he then was), addressed the principle of consistency
in disciplinary actions in the workplace. The court emphasized
that
employees guilty of similar misconduct should be treated similarly.
The court stated as follows:
“
In
SACCAWU & Others v Irvin & Johnson
(1999) 8 BLLR
741
(LAC) at 751 B this court reiterated that consistency is
an element of disciplinary fairness, and that
it “is
really the perception of bias inherent in selective discipline which
makes it unfair”, but went on to observe
that the flexibility
which is inherent in the exercise of discretion will inevitably
create the potential for some inconsistency.
I am not at all sure
that disciplinary decisions involve the exercise of a
discretion, but even if that is so, fairness
would seem to me to
generally require any such discretion to be exercised consistently.
While it is true that an employer
cannot be expected to continue
repeating a wrong decision in obeisance to a principle
of consistency (751D), in
my view the proper course in
such cases is to let it be known to employees clearly and in advance
that the earlier application
of disciplinary measures
cannot be expected to be adhered to in the future. Fairness, of
course, is a value judgment,
to be determined in the circumstances of
the particular case, and for that reason there is necessarily room
for flexibility, but
where two employees have committed the same
wrong, and there is nothing else to distinguish them, I can see no
reason why they ought
not generally to be dealt with in the same way,
and I do not understand the decision in that case to suggest the
contrary. Without
that, employees will inevitably, and in my view
justifiably, consider themselves to be aggrieved in consequence of at
least a perception
of bias.”
(Own emphasis)
[22]
It
must be noted that consistency does not require that the same
sanction be imposed in every instance where the same misconduct
occurs. All it means it is that same treatment in the form of
procedure must be applied in addressing similar instances of the
same
act of misconduct. In this case, while the employee was charged and
ultimately dismissed for the same act of misconduct, his
supervisor
with whom he committed the same offence was not even charged, and
there is no evidence of any disciplinary action having
been taken
against her. The late argument by the counsel for the City during the
hearing that the supervisor was still under investigation
was not
placed before the arbitrator.
[23]
In
determining whether the sanction of dismissal for the misconduct is
fair, one of the issues the arbitrator has to consider is
whether
‘the
rule or standard has been consistently applied by the employer’
in
terms of Item 7 (b) (iii) of the Code of Good Practice: Dismissal. In
this case, the arbitrator did just that, because it would
be
dereliction of her duty if she were to disregard such an issue simply
because it was raised rather late in the proceedings by
the lay
employee.
[24]
The record shows that upon being confronted
by the allegation of inconsistent application of the rule, the City
readily provided
explanation to the arbitrator for the
differentiation, namely, that Mlungwana’s supervisor, who also
committed the same offence
with him, was not charged because she left
work 9 minutes earlier whereas Mlungwana left 14 minutes earlier. The
arbitrator found
that the rule was inconsistently applied, because
they both breached the rule, and the differentiation was not
justified in the
circumstances.
[25]
The
ratio
decidendi
of the arbitrator in the
award is that the City had not consistently applied the ‘zero
tolerance’ policy on dishonesty
with regards to its rules and
sanction in the light of the misconduct complained of. Based on the
above and the imperative of consistent
treatment of employees as
crucial element of fairness, it is my view that based on the evidence
placed before her, the arbitrator
properly applied her mind and
reasoned soundly that the dismissal was substantively unfair. In my
view, the resultant decision
of the arbitrator cannot be faltered.
[26]
Another issue raised by the City during
argument in attacking the arbitration award is that the arbitrator
failed to consider that
there was irretrievable breakdown of trust in
employment relationship between the City and Mlungwana. In this
regard, it does not
appear from the record that this issue was
canvassed by the City at the arbitration proceedings. Also, no
evidence was led before
the arbitrator in this regard.
[27]
In
a case where the employer seeks to justify the dismissal on the basis
of breakdown of trust relationship with the employee, the
Labour
Appeal Court (LAC) in
Autozone
v Dispute Resolution Centre and Others
,
[3]
per Murphy AJA, eloquently articulated that is such cases it would be
prudent normally of an employer to lead evidence in that
regard
unless the conclusion that the trust relationship had broken down is
apparent from the nature of the offence or the circumstances
of a
dismissal.
[28]
My view is that in a case where like
present, where a subordinate employee is charged with an act of
misconduct that he committed
together with the supervisor and the
latter is not equally charged, it cannot be said that the breakdown
of the trust relationship
is apparent from that conduct or
circumstances of the dismissal. This is so because it would not make
sense that a similar conduct
can have different consequences to
different employees on the same set of facts. This is more so when
such conduct has been condoned
only to a senior employee who was
responsible for,
inter alia,
instilling discipline and behaving in an exemplary manner. The
circumstances of dismissal in this case do not illustrate a breakdown
of trust relationship, so much so that the employer was absolved from
leading evidence before the arbitrator in that regard.
[29]
In such circumstances, I find that the
argument of breakdown of trust relationship is not convincing. In
my view, it would
be unfair to have expected the arbitrator to take
judicial notice of the claimed breakdown of trust employment
relationship in
circumstances where there has been disparate
application of discipline meted upon the employees who have committed
the same act
at the same incident.
[30]
Having considered all the relevant issues
at play in this matter, I am of the view that the arbitration award
is not one that which
no reasonable decision maker could have made on
the facts placed before her. In my view the reasoning of the
arbitrator is sound
and the resultant award amply reasonable, and
thus, the arbitrator cannot be faltered in the circumstances. It
follows that the
review application must fail.
[31]
In the result, the following order is made:
Order
1.
The condonation application for the late
lodgement of the review application is granted;
2.
The review application is dismissed;
3.
There is no order as to costs
Z. L. Mapoma
Acting Judge of the
Labour Court of South Africa
Appearances:
Counsel
for the Applicant
Adv
V September
Instructed
by
Riley
Incorporated, Cape Town
Counsel
for the Respondent
Mr
Elco Geldenhuys
Instructed
by
Mc
Gregor Erasmus Attorneys, Cape Town
[1]
Act 66 of 1995 (as amended)
[2]
(2000)
21 ILJ 1957 (LAC)
[3]
(2019)
40 ILJ 1501 (LAC).