The Labour Appeal Court has ruled that a municipality acted unfairly when it dismissed an employee for misconduct for which he had effectively already been sanctioned, reaffirming that fairness remains the central consideration in workplace disciplinary matters.
In SAMWU OBO MALATSI V SA LOCAL GOVERNMENT BARGAINING COUNCIL [2025] ZALAC, the employee was, represented by the South African Municipal Workers' Union (SAMWU) against the Gert Sibande District Municipality. The employee was initially employed by the municipality as an intern in 2009 before later becoming an accountant in its finance department.
In 2012, the municipality launched a forensic investigation after suspicious activity was detected on its bank account. The investigation revealed several failed attempts to access the municipality’s online banking system from the employee’s computer. However, investigators could not establish who had used the computer at the relevant times.
The employee was charged with dishonesty and fraud-related misconduct and dismissed in 2013. He challenged the fairness of his dismissal at arbitration before the South African Local Government Bargaining Council.
During the proceedings, evidence emerged that employees commonly shared passwords and that passwords were often written down openly in the office.
The Arbitrator found that the municipality had failed to prove that the employee personally attempted to access the bank account unlawfully. His dismissal was therefore found to be substantively unfair.
However, the Arbitrator also criticised the employee for negligently sharing his password and failing to protect access to his computer.
Instead of awarding him backpay, the Arbitrator ordered reinstatement without remuneration for the four-month period between dismissal and reinstatement, effectively treating that period as unpaid suspension.
After the employee returned to work in 2017, the municipality instituted fresh disciplinary proceedings against him based on the password-sharing conduct revealed during the first arbitration. He was again dismissed, this time for gross dishonesty and failing to comply with IT policies.
A second Arbitrator and later the Labour Court (LC) upheld the dismissal, finding that the new charges differed from those in the first disciplinary process.
On appeal, however, the Labour Appeal Court (LAC) found that the first arbitration award had already imposed a sanction for the password-related misconduct. The Court held that the municipality was bound by that award and could not later dismiss the employee for the same conduct.
The Court concluded that the second dismissal amounted to unfair double punishment. The appeal succeeded, the second arbitration award was reviewed and set aside, and the employee was reinstated with effect from the date of his 2016 dismissal.
In this weekly column, labour lawyer Jonathan Goldberg, chair of Global Business Solutions, looks at various aspects of labour law
