Winelands Consulting

19/08/2026

The Labour Court has confirmed that procedural fairness is about substance, not box-ticking. Employers are expected to act fairly and transparently, not to achieve procedural perfection.

By Carl Ranger
Head of Training at Consolidated Employers Organisation (CEO SA)

https://ceosa.org.za/infographic-the-labour-court-draws-the-line-on-procedural-perfection/

09/08/2026

05/08/2026

THREATENING CONDUCT AT CANTEEN

Mr Nyawo had been employed by UCL Company and became involved in an altercation with two canteen employees, Margaret and Sheila, concerning food he wished to order. UCL charged him with assault, alleging that he had slapped Sheila. He was found guilty and dismissed. At arbitration, the commissioner upheld the charge and found the dismissal fair. The evidence showed that the canteen serving counter had a glass barricade with a waist-high opening. One witness accepted that, because of the physical arrangement, Nyawo could not have reached through the opening and slapped Sheila’s face while she was standing. The union sought to review and set aside the arbitration award.

Disciplinary charges need not be drafted with criminal-law precision. An employee may be found guilty of a lesser charge or competent verdict not expressly listed in the charge sheet where that finding is supported by the evidence, shares similar elements with the original allegation, is directly related to it and causes no prejudice to the employee’s defence. Nyawo’s representative had never requested an inspection in loco. Both Nyawo and Sheila testified about the layout and were afforded an opportunity to persuade the commissioner that a slap was impossible.

The evidence did not support a finding that Nyawo had actually slapped Sheila. The physical arrangement of the counter and barricade rendered that improbable. Even so, the dismissal remained a reasonable outcome because the evidence established threatening and grossly disrespectful conduct. Aaron Naidoo, who had accompanied Nyawo and was not a canteen employee, testified without contradiction that Nyawo reached through the opening in a swinging motion towards Sheila. The proposition put to Naidoo in cross-examination itself admitted that Nyawo had placed his hand through the opening. Nyawo’s signed statement recorded that Sheila had shown him her fist and that he had tried to grab her but could not because she was inside the canteen. His denial of that statement was implausible.

Margaret’s undisputed evidence was that Nyawo called her “isilima”, meaning stupid, and the canteen owner’s undisputed evidence was that Nyawo told him to “shut up” when asked to lower his voice. Sheila’s later claim that her earlier statement implicating Nyawo had been forced and that the incident was a set-up because he had complained about canteen prices was far-fetched and had not been put to UCL’s witnesses. The proven misconduct was directly related to the assault allegation and caused no prejudice. Nyawo expressed no self-reproach, and a reasonable commissioner could conclude that dismissal was appropriate. The review application was dismissed.

Association of Mineworkers and Construction Union and Another v UCL Company (Pty) Ltd and Others (D118/24) [2026] ZALCD 37 (15 July 2026)

04/08/2026

“BOBBEJAAN” COMMENT AND WORKPLACE HARASSMENT POLICY

Mr Strydom had acted for 28 years as an independent financial adviser under contract with Sanlam Life Insurance Limited (Sanlam). During a telephone conversation with consultant Ms Visagie, he experienced poor telephone, internet and computer connections. While speaking briefly to a colleague, and with Visagie still on the line, he said there was “nou weer ń bobbejaan op die lyn”. Visagie, a coloured woman, understood the remark to refer to her and complained. An independent enquiry rejected Strydom’s explanation that the expression referred to technological difficulties, found racial harassment contrary to Sanlam’s Workplace Harassment Policy (Harassment Policy), and recommended termination. Sanlam accepted the recommendation and gave notice that termination would take full effect on 31 July 2026. Sanlam also relied on a 2022 complaint concerning Strydom’s treatment of employees and a later conversation in which he allegedly said service levels had declined since Sanlam “verkleur”.

Strydom urgently sought an interim interdict restoring and preserving the contractual relationship pending an action. Strydom's forensic linguist concluded from the audio recording and discourse context that the expression more probably referred to ongoing technical problems than to Visagie. The recurring references to the connection “haak vas”, internet difficulties and use of “weer” supported that construction. Although “bobbejaan” may constitute an abhorrent racist appellation when directed at a person of colour, not every Afrikaans figurative use carries racial meaning.

For interim purposes, Strydom’s explanation was inherently plausible and Sanlam had not cast serious doubt on it. The enquiry’s rejection of his version merely because the expression was not an officially recognised idiom was flawed. He could therefore obtain declaratory relief at trial that the impugned statement did not breach the Harassment Policy. That did not, however, establish a prima facie right to reinstatement. Sanlam had expressly raised the 2022 complaint and the Hagan conversation before termination, yet Strydom deliberately omitted the relevant letter and did not answer either allegation.

The undisputed statement that service deteriorated after Sanlam “verkleur” appeared racist. A trial court could uphold termination on those alternative grounds even if the Visagie incident did not justify it. Reinstatement would therefore not necessarily follow. The alleged loss of goodwill and income was quantifiable in damages, clients could potentially be reassigned, and no evidence showed prejudice to them. Compelling Sanlam to continue contracting with a person in whom it had lost trust outweighed Strydom’s potential harm. He thus failed to establish any requirement for interim relief.

Strydom v Sanlam Insurance Limited and Another (2026/161021) [2026] ZAWCHC 382 (31 July 2026

19/07/2026

LABOUR – DISMISSAL – INCAPACITY – ILL-HEALTH
Solidarity and Ms Samaai (the employee) sought to review the dismissal of the employee by Cape Peninsula University of Technology (CPUT) on grounds of incapacity arising from ill health. The employee had been employed since 1996 as an administrator and had suffered from anxiety and depression since 2018, as well as physical injuries including a finger amputation and wrist surgery. Occupational therapy reports over several years confirmed that her ability to meet deadlines and cope with work pressures was impaired, although some improvement was noted with treatment. The employee experienced periods of prolonged sick leave and temporary light duties but resumed full duties in 2021. In June 2023 CPUT convened an incapacity enquiry, which was conducted in her absence while she was on approved sick leave, and she was dismissed in July 2023. Her subsequent medical reports supported her inability to perform her duties and recommended medical boarding.

Evidence revealed that much of the employer’s case focused on alleged poor performance rather than a clearly identified medical incapacity, and no comprehensive medical assessment was relied upon during the incapacity enquiry. The employer relied on historical transfers between 2015 and 2018 as evidence of accommodation, although these preceded the relevant incapacity process and were motivated by performance concerns. During the enquiry, the employee attempted to pursue medical boarding, but the employer refused to engage with the application once the matter had been escalated to Employee Relations.

The evidence established that the respondent failed to properly investigate accommodation and alternatives during the relevant incapacity process, and reliance on historical transfers did not demonstrate compliance with those obligations. The refusal to consider the employee’s medical boarding application constituted a material failure to explore a reasonable alternative to dismissal, as required by the Code. While procedural unfairness did not automatically entail substantive unfairness, the failure to investigate alternatives independently justified a finding that the dismissal was substantively unfair.

The dismissal of Ferose Samaai by Cape Peninsula University of Technology was substantively unfair. The respondent is ordered to pay compensation of R497,948.00, being the equivalent of eleven months’ remuneration, within 15 court days. There is no order as to costs.

Solidarity v Cape Peninsula University of Technology and Others (C196/24) [2026] ZALCCT 107 (8 July 2026

19/07/2026

RACISM IN THE WORKPLACE AND DISMISSAL
Full Circle Contact Centre Services (the applicant) employed a Team Leader, but complaints arose from team members alleging that this employee made racially discriminatory remarks and engaged in unprofessional conduct. These included statements comparing African and Coloured employees’ abilities on racial grounds, recounting incidents involving a dog named “Hitler” trained to bark at African people, expressing discomfort reporting to an African female, and referring to conduct as a “black thing”. Following investigation, the employee was charged with discrimination on the grounds of race and gender and conduct unbecoming of a manager. After a disciplinary hearing, he was found guilty and dismissed. The employee referred an unfair dismissal dispute to the CCMA, where the Commissioner found the dismissal substantively unfair and ordered reinstatement with back pay.

The applicant brought a review application seeking to set aside the arbitration award. The Commissioner had reduced admitted racial conduct to mere insensitivity, failing to determine guilt of the charges and misconstruing the enquiry. The objective test for racism, as articulated in Rustenburg Platinum Mine v SAEWA obo Bester and Others, required assessing whether a reasonable person would regard the conduct as racist, taking into account context and South Africa’s history.

The Commissioner failed to make a proper finding on whether the employee committed discrimination and instead trivialised objectively racist conduct. The evidence, including admissions by the employee that his remarks were offensive and racist, demonstrated conduct that was derogatory and an affront to dignity. By mischaracterising such conduct as insensitivity, the Commissioner ignored material evidence and applied an incorrect standard, resulting in a finding that no reasonable decision-maker could reach. This misdirection further tainted the sanction enquiry, as the seriousness of racism in the workplace was not appreciated. The Commissioner failed to consider the gravity of racial discrimination, the employer’s duty to eradicate such conduct, and the impact on the employment relationship. The finding that dismissal was too harsh fell outside the range of reasonable outcomes.

The arbitration award is reviewed and set aside. The award is substituted with a finding that the dismissal of the employee was substantively fair. There is no order as to costs.

Full Circle Contact Centre Services (Pty) Ltd t/a Capita South Africa v Williamson and Others (C440/2023) [2026] ZALCCT 109 (14 July 2026

17/07/2026

A mutual separation agreement allows an employer and employee to end the employment relationship by mutual consent rather than through dismissal or resignation. These agreements are often used where the employment relationship has irretrievably broken down, and both parties wish to separate on agree...

17/07/2026

Medical certificates remain a critical safeguard for employees on sick leave, but they are also frequently abused. While employers are entitled to investigate suspected misuse, recent Labour Appeal Court jurisprudence makes it clear that suspicion alone is insufficient to justify disciplinary action or dismissal.

By Carl Ranger
Head of Training at Consolidated Employers Organisation (CEO SA)

https://ceosa.org.za/infographic-suspected-false-medical-certificates/

06/07/2026

Wees versigtig....ontvang, aanvaar en onderteken ALTYD eers 'n dienskontrak alvorens jy bedank!!!

DISCRIMINATION FOR BEING OVER-QUALIFIED?
The plaintiff applied for a horticultural assistant position advertised by Transnet Freight Rail (the defendant) in 2013. The advertisement required a Code B driver’s licence and indicated that horticultural experience would be an advantage. Three candidates, including the plaintiff, were interviewed. The interview panel scored each candidate, finding the plaintiff competent but ranking her below the successful candidate in areas such as communication, administrative skills, and problem-solving. The plaintiff alleged that she was led to believe she would be appointed following conversations with the defendant’s officials and, relying on this, resigned from her previous employment. She was later informed that she had not been appointed. Dissatisfied, she lodged complaints and ultimately instituted proceedings alleging unfair discrimination in her non-appointment.

The plaintiff claimed that Transnet Freight Rail had unfairly discriminated against her by not appointing her. She did not rely on recognised grounds such as race or gender and was unable to articulate a clear ground of discrimination, though it later emerged that she alleged discrimination based on her qualifications or being overqualified.

The Court considered section 6(1) of the Employment Equity Act 55 of 1998, which prohibits unfair discrimination on listed or arbitrary grounds, read with section 11(2), which places the onus on a claimant alleging discrimination on an arbitrary ground to prove that the conduct was irrational, discriminatory, and unfair. The defendant led evidence that the appointment decision was merit-based, with the selected candidate outperforming the plaintiff in key competencies. The plaintiff relied on an alleged promise of appointment and suggested, during cross-examination, alternative grounds such as age discrimination, which were not pleaded.

The plaintiff failed to identify or prove a cognisable ground of discrimination. Even if the plaintiff’s case was that she was not appointed because she was overqualified, this did not constitute discrimination on an arbitrary ground within the meaning of section 6(1) of the Employment Equity Act. The decision not to appoint her was rational and based on comparative merit. There was no evidence that the defendant’s conduct impaired her dignity or perpetuated systemic disadvantage. The alleged promise of appointment was rejected on the probabilities, and no unfair treatment was established. The plaintiff’s claim is dismissed.

Nkhwatshirema v Transnet Freight Rail (JS629/14) [2026] ZALCJHB 186 (8 June 2026)