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[2026] ZALCCT 28
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Hlangana v South African Local Bargaining Council and Others (C279/2024) [2026] ZALCCT 28 (20 February 2026)
THE
LABOUR COURT OF SOUTH AFRICA
AT CAPE TOWN
Case No: C 279/2024
(1)
Reportable:
NO
(2)
Of interest to other Judges: NO
20/02/2026
In
the matter between:
FEZILE
HLANGANA
Applicant
and
SOUTH
AFRICAN LOCAL BARGAININGCOUNCIL
First
Respondent
FRANSCOIS
VAN DER MERWE N.O
Second
Respondent
CITY
OF CAPE TOWN
Third
Respondent
Heard
:
17 February 2026
Delivered:
20 February 2026
Summary:
(Review – Misconduct –
Dismissal for dishonesty in promotion interview – Award
upholding dismissal one that a
reasonable arbitrator could arrive at)
JUDGMENT
LAGRANGE, J
Nature
of the application
[1]
This is an application to review an arbitration award which dismissed
the applicant’s claim that his dismissal was
substantively and
procedurally unfair.
[2]
The applicant’s dismissal arose from a single incident which
occurred in the course of an interview for promotion
to the post of
professional officer in development management. The job was
Head of Communications for the department that
dealt with all land
use and building plans in the city (concerning about 900,000
properties). The interview was conducted
using Skype.
[3]
The applicant was successful and was appointed in the post from 1
June 2022. Some months later in March 2023 he faced
two charges.
Firstly, he was accused of being dishonest by misrepresenting to the
interview panel when he was asked if he had ever
been convicted of
any departmental/disciplinary action or was currently facing any
departmental disciplinary action by answering
“no” to the
question despite knowing that he had been sanctioned for previous
disciplinary action in his career at
the city. Secondly, he was
alleged to have committed gross misconduct in the form of
misrepresentation by not declaring or
disclosing his previous
disciplinary record to the respondent.
[4]
The disciplinary action only came about when the director of the
development management department learned of his previous
disciplinary history, when seeking a view on his performance in his
previous post, because she was not satisfied with his current
performance. She testified that if his previous disciplinary history
had been known at the time he was interviewed, he would not
have been
in contention for the post. Four people in the development management
department had been dismissed during the previous
year for
dishonesty, and she was not prepared to take the risk of him working
in the department.
[5]
The crux of the case turned on whether the applicant had given the
answer he did, not because he had any intention to
misrepresent his
disciplinary history but because for one reason or another he
effectively only answered the second part of the
question, concerning
whether he was currently facing disciplinary action at the time of
the interview.
Aspects of the evidence
[6]
When the applicant’s representative outlined the basis of his
defence, he emphasised the two-part nature of the
question and that
the employer failed to clarify which part of the question the
applicant was answering. When the applicant answered
‘no’
he was not being dishonest because he was not facing any disciplinary
hearing at the time. A great deal of the
cross-examination of the HR
manager, who had posed the question in the interview, was spent
trying to get the latter to admit that
when the applicant ‘no’
in relation to the second part of the question, he was not lying
because he was not facing
in the disciplinary proceedings at the time
of the interview.
[7]
At some stage during the laborious to and fro between the applicant’s
representative and the HR manager the applicant’s
representative announced an intention to bring a language expert to
clarify that it was a two-part question. The Commissioner,
rightly my
view, made it clear he would not entertain evidence of the matter
because in essence the issue was simply that it was
one question
consisting of two parts to which the applicant gave one answer. In
any event, the applicant’s representative
was content for the
hearing to proceed, without pressing the issue, on the basis that the
Commissioner agreed that it was a question
with two parts.
[8]
Right at the end of the HR managers cross-examination, it was then
put to him that the applicant only became aware of
the first part of
the question when he saw it afterwards in writing and, at the time of
being of the questioned, his mind was focused
on the issue of whether
he was facing disciplinary proceedings at the time of the interview.
[9]
Apart from saying that he only became aware of the first part of the
question when he was charged with misconduct, the
applicant argued
that, as far as he was concerned, he had already been sanctioned for
his previous misconduct which was now ‘null
and void’.
Part of his prior disciplinary record consisted of two separate acts
of misconduct in which he had been found
guilty of plagiarism. In any
event, as an internal candidate for the post his disciplinary record
would have been known. It must
be mentioned that the applicant never
actually said he felt he did not need to answer the first part of the
question because the
employer knew of his prior record.
[10]
He also asserted that it was up to the interview panel to have asked
a follow up question if they wanted him to deal
with previous
disciplinary hearings, which he would obviously have answered
truthfully because his record could be checked. He
viewed the
question as having two severable portions and he had answered the
second part, which is the part that registered with
him.
[11]
The applicant was confronted with a version he had presented at the
internal disciplinary enquiry that poor Skype connectivity
during the
interview had caused him not to hear the first part of the question
at all. At the arbitration he no longer disputed
that the whole
question had been asked but that it was only the second part which
resonated with him, or which was the part he
heard.
[12]
He claimed it was only when he saw the whole question in writing,
when her received the disciplinary charges that he
became aware of
the first part too.
The award
[13]
The arbitrator concluded that the applicant’s defence did not
have a ring of truth about it. He characterised the
defence as either
the applicant did not understand the question properly, or only heard
the second part of the question or only
answered the last part of the
question. The arbitrator held that the applicant was well educated in
and came from a communications
background so he should reasonably
have understood the question and stated a clear unconditional ‘yes’
or conditional
‘no’. The evidence showed that at the time
he was earning just under R 500,000 a year.
[14]
The arbitrator noted that his defence that he did not hear the second
part of the question was an uncorroborated defence
that was only
offered “at the last moment” and was not put to any of
the employer’s witnesses.
[15]
The arbitrator considered that the question was phrased in plain
language, even if it comprised two elements, and the
answer clearly
could have materially influenced the outcome of the interview. Given
this, the arbitrator was of the view that it
was more probable that
he decided not to tell the whole truth about his disciplinary record.
[16]
The arbitrator noted that the employer had a zero- tolerance policy
when it came to dishonest misconduct and that the
remorse shown by
the applicant at the arbitration hearing came too late. In argument
it was contended there was no evidence for
the existence of the
policy, but the third respondent points out that the evidence of the
applicant’s departmental manager
on it was not challenged at
any stage.
[17]
The arbitrator held that employees needed to be bona fides and honest
in their dealings with the employer’s and
that trust and
confidence was fundamental to the employment relationship. It was not
part of the applicant’s case that he
was unaware of this but
rather that he did not break it.
[18]
The debate about the two-part nature of the question that arbitrator
regarded as an artificial semantic issue. The question
was not
unclear. He concluded that the applicant had simply not been truthful
when he answered the question. His reasons for dismissing
the
applicant’s defense was that he found that his contention that
he did not either understand the question properly or
that he only
heard the last part always only answering the last part did not have
a ring of truth. He set out the considerations
that brought him to
this conclusion.
[19]
In summary, they may be expressed as follows. The applicant was a
professional officer involved in communication work
who ought to have
understood the question. There was no duty on the employer to probe
his answer to the question nor was it reasonably
required. The
applicant had shown no hesitation in answering the question and did
not ask for any clarity before answering. Given
his response, there
was no reason the interviewing panel would have sought clarity from
him. His explanation that he only heard
the second part of the
question was not put to any of the employer’s witnesses. Given
that an answer to the whole of the
question would have materially
influenced his candidacy it was more probable that this was the
reason he did not answer fully.
Grounds of review
[20]
At the hearing, the applicant’s counsel,
Ms Myburgh,
clarified the grounds of review which were being pursued.
[21]
The applicant abandoned his ground of review that was premised on the
arbitrator supposedly not appreciating that he
might not have heard
the whole question because of a poor Skype connection. It appears
this had been a contention in the disciplinary
enquiry only. The
associated claim that an expert witness ought to have been allowed to
testify on this also fell away.
[22]
It was argued that the arbitrator had committed a reviewable error in
not permitting the applicant to call a linguistic
expert to elucidate
on his failure.
[23]
Secondly, it was contended the arbitrator failed to properly consider
the appropriateness of the sanction of dismissal,
which was
disproportionate to the misconduct complained of. A number of issues
revealing flaws in the arbitrator’s analysis
were linked to
this. He relied on a supposed “zero tolerance” policy
without evidence of such a policy. He failed to
weigh the severity of
the alleged dishonesty which was not gross dishonesty. The alleged
dishonesty was minor and non-prejudicial
to the employer. No
financial loss, no reputational damage, or loss of public trust was
entailed by his appointment. Had
it not been for his manager
being dissatisfied about his performance in his new post, his alleged
misrepresentation in his interview
would never have come to light and
when it did, it was seized on as a pretext to dismiss him instead of
trying to rectify his performance.
In any event, the arbitrator
ignored the evidence that he had worked for nine months in the new
position without incident.
Failure to allow a
linguistic expert to be called.
[24]
It is true the arbitrator reacted somewhat abruptly when the
applicant’s representative intimated he wanted to
call such an
expert to deal with the two-fold nature of the question and the type
of answer or answers it could be expected to
elicit. However, I agree
that these issues did not concern abstruse grammatical constructions
or elaborate use of language. They
were well within the competence of
the arbitrator to determine, just as they were within the
capabilities of the representatives
to present argument on them.
The determination of
dismissal as an appropriate sanction.
[25]
It is true that evidence of a zero-tolerance policy on dishonesty was
based on the evidence of the applicant’s
department manager’s
evidence, but she was not challenged on it. Moreover, she did testify
on the importance of integrity
in a department which dealt with all
issues relating to building and property issues, which was also not
challenged.
[26]
It is true that if his manager had not made enquiries about him
because of her concerns about his performance, his misrepresentation
might not have come to light. It may even be true that she saw
charging him with misconduct as an easier way to address the
problem.
But the fundamental question the arbitrator had to
determine was whether the employer had made out a case that warranted
dismissal
for dishonesty, irrespective of other motives that might
have been at play. The fact that he would not have been employed in
the
department if his disciplinary history had been known
demonstrates that his misconduct was a self-standing ground for
taking disciplinary
action.
[27]
On the question of the gravity of his dishonesty, it is true that no
major losses or reputational damage was suffered
by the City.
However, it was not inconsequential. The applicant obtained
appointment to a job he would not have been considered
for, had his
record been known to the interview panel. It also stands to reason
that another candidate might have been successful.
It is also not
irrelevant that on two previous occasions had been found guilty of
plagiarism, which is also a form of dishonesty.
Even though those
acts of misconduct were not relied on to argue that nothing less than
dismissal would be satisfactory, they are
indicative of an
inclination to act in that manner which has not been arrested.
[28]
On the question of mitigation and aggravation, it is true these were
not expressly dealt with by the arbitrator in such
terms. However, it
is noteworthy that mitigating evidence was not elicited in the
arbitration and in the written submissions made
on the applicant’s
behalf, the entire focus was on trying to prove his innocence. In the
absence of some acknowledgement
of culpability, even of a lesser
degree, it can be difficult to overlook the fact that dishonesty
involves deliberate deception.
[29]
In fairness to the arbitrator the focus of both parties was primarily
on how serious the dishonesty was. The arbitrator
was also confronted
with the problem that occurs repeatedly, where there is no
acknowledgement of wrongdoing. In this case, the
applicant was not
even willing to entertain the possibility that his answer might
reasonably have been construed as a denial both
that he had no
previous record of misconduct and was not currently facing charges of
misconduct. The suggestion that it was up
to the interview panel to
probe his answer to determine what it did not address is
extraordinary as it places the onus on the employer
to extract the
full answer to the question.
[30]
The main
difficulty the applicant has, is to demonstrate that the arbitrator’s
decision lay outside the bounds of what a reasonable
commissioner
might conclude. In
Head
of Department of Education v Mofokeng & others
[1]
,
the LAC
made it clear that even if material factors are overlooked by an
arbitrator, those omissions must be of such magnitude that
the
arbitrator undertakes the wrong enquiry or arrives at an unreasonable
result. It is up to the applicant in review proceedings
to show that
the irregularities committed by the arbitrator in relation to their
assessment of issues or facts is such that they
failed to address the
questions they have to determine.
[31]
In this case, it is just possible another arbitrator might have seen
the magnitude of the applicant’s dishonesty
in a less
serious light, but that does not mean the arbitrator’s finding
that it was serious enough to warrant dismissal
is reviewable. It was
not an untenable outcome based on the evidence before him.
[32]
In light of the discussion above, I am satisfied the arbitration
award is not one that no reasonable arbitrator could
arrive at and
the review application must fail. There is no reason to depart
from the normal approach to costs in such cases.
Order
1.
The review application is dismissed.
2.
No order is made as to costs.
R
Lagrange
Judge
of the Labour Court of South Africa
.
Appearances:
For the
Applicant:
--- L Myburgh
Instructed
by:
--- Greenberg and Associates
For the
Respondent: --- T Du
Preez
Instructed
by:
--- Mosdel Pama & Cox
[1]
(2015) 36 ILJ 2802 (LAC) at paras [30] - [33].