City of Cape Town v SAMWU obo Mlungwana and Others [2026] ZALCCT 25

Court: Labour Court of South Africa, Cape Town

Judge: Mapoma AJ

Date of Delivery: 19 February 2026

Factual Matrix

Mlungwana, an administrative clerk at the City's Drivers Licence Testing Centre, was dismissed for gross dishonesty after claiming two hours of overtime (16h00–18h00) when he had actually left at 17h46 (14 minutes short). His supervisor, Tandi Phadi, left at the same time and also misrepresented her time by 9 minutes, but was not charged. Mlungwana referred an unfair dismissal dispute to the bargaining council. The arbitrator found the dismissal procedurally fair but substantively unfair, ordering reinstatement without back pay. The City sought review of the substantive fairness finding.

Reasoning for the Finding

"[20] 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." [para 20]

"[21] In Cape Town City Council v Masitho and Others, the Labour Appeal Court...emphasized that employees guilty of similar misconduct should be treated similarly... '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'." [para 21, quoting Masitho]

"[24] The record shows that upon being confronted by the allegation of inconsistent application of the rule, the City readily provided explanation...namely, that Mlungwana's supervisor...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." [para 24]

"[25] 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." [para 25]

"[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." [para 29]

Finding/Order

1. Condonation for late filing of the review application was granted.

2. The review application was dismissed.

3. No order as to costs.

The Court held that the arbitrator's award was reasonable and within the bounds of what a reasonable decision-maker could reach on the evidence, particularly regarding the inconsistent application of the "zero tolerance" policy.