City ordered to reinstate clerk dismissed over 14-minute overtime claim

The City of Cape Town's "zero-tolerance" policy has again come under the spotlight after the Labour Court dismissed it's review application, confirming that the dismissal of an administrative clerk over a 14-minute overtime discrepancy was substantively unfair.

Acting Judge Zuko Mapoma ruled that the arbitration award ordering the reinstatement of Mkhululi Mlungwana was reasonable and should stand.

Mlungwana, who worked at the City’s Drivers Licence Testing Centre in New Ottery, was dismissed in February 2023 after a disciplinary hearing found him guilty of gross dishonesty. He had claimed overtime from 4pm to 6pm but had actually clocked out at 5:46pm — a discrepancy of 14 minutes.

The City argued that the misrepresentation amounted to dishonesty under its “zero tolerance” policy and that dismissal was an appropriate sanction. However, Mlungwana’s supervisor, who left at the same time but misrepresented her working time by nine minutes, was not charged with misconduct.

Aggrieved by his dismissal, Mlungwana — represented by the South African Municipal Workers Union (SAMWU) — referred an unfair dismissal dispute to the South African Local Government Bargaining Council. Commissioner Ursula Bilbring found that while Mlungwana was guilty of misconduct and that the disciplinary process was procedurally fair, the dismissal itself was substantively unfair.

It was also found that Mlungwana’s supervisor committed the same offence by misrepresenting her time by nine minutes. Bilbring held that, contrary to the City’s “zero tolerance” policy on dishonesty, the policy had been applied inconsistently. She reasoned that claiming it was acceptable to be dishonest by nine minutes but not by 14 minutes under a “zero tolerance” policy was contradictory.

Furthermore, Bilbring stated that Mlungwana worked under his supervisor and followed her lead. By condoning the supervisor’s conduct under a “zero tolerance” policy and distinguishing her case from Mlungwana’s, the City had applied discipline inconsistently, which was irrational and arbitrary. According to Bilbring’s reasoning, this made the sanction of dismissal too harsh and unfair.

As a result, Bilbring ruled that the dismissal was too harsh in the circumstances, particularly given the inconsistent application of discipline. She ordered that Mlungwana be reinstated without back pay.

Unhappy with the decision, the City approached the Labour Court seeking to review and set aside the arbitration award. It argued that the commissioner had erred in fact and law, committed irregularities, and reached an unreasonable conclusion. The City further contended that the issue of inconsistency in discipline had not been properly raised during the arbitration proceedings.

The City also argued that the employment relationship had broken down irretrievably.

Judge Mapoma rejected the City’s arguments, finding that the arbitrator had acted within her powers under the Labour Relations Act and had properly considered the evidence before her.

The court highlighted that both Mlungwana and his supervisor had breached the same rule on the same occasion, yet only one was disciplined. The City’s justification — that the supervisor left nine minutes early while Mlungwana left 14 minutes early — did not sufficiently explain the differential treatment under a “zero tolerance” policy.

The judgment stressed that consistency in the application of workplace discipline is a fundamental component of fairness. While employers are not required to impose identical sanctions in every case, they must justify any differentiation between employees who commit the same misconduct.

The court further noted that the City had not presented evidence during arbitration to demonstrate a breakdown in the trust relationship, and such a breakdown was not apparent from the circumstances.

Recently, the Labour Court also agreed with an arbitrators decision that the dismissal of a learner Law Enforcement Officer as a first offence was too harsh under the circumstances after his random workplace drug test tested positive for THC (cannabis). The court ruled for his reinstatement and that back pay of R553,135.24 be paid.

He was charged with misconduct for testing positive while on duty, which breached the City's Substance Abuse System and Procedure. The policy was formulated, where a zero-tolerance approach is taken for law enforcement officers found guilty of testing positive for being under the influence of drugs and alcohol, and prohibits employees from being under the influence of intoxicating substances while on duty.

Cape Times