City of Cape Town v IMATU obo Ebrahim [2026] ZALCCT 181

Date of Judgment & Seat of Court: 5 October 2026, Labour Court, Cape Town

Case No: C319/2024

Name of Judge(s): Motshekga AJ

Summary of Factual Matrix:

The employee, a senior operational supervisor and driver in the City’s Urban Waste Management directorate with 34 years’ unblemished service, was dismissed on a charge of misusing a City vehicle for private purposes in order to solicit money from residents, after a member of the public alleged that he had asked for a tip in return for removing refuse bags. The bargaining council commissioner found that misuse of the vehicle had not been established but that the solicitation of a tip had been proved; he held dismissal too harsh for a first offence, reinstated the employee with limited back pay and directed that a final written warning be issued.

The City applied under section 145 of the LRA to review the award and for substitution or remittal, contending that the commissioner should have found misuse or attempted misuse, that soliciting a tip is inherently dishonest and unlawful, that he ignored its zero-tolerance policy and misapplied Shoprite Checkers, and that he disregarded evidence that the trust relationship had broken down. Condonation for the late review was granted at the outset of the hearing.

Summary of Findings:

[14] ‘The Commissioner found that the vehicle was lawfully issued to Ebrahim and it did not deviate from its permitted route, and that it was neither damaged nor used to transport any unauthorised passenger. The Commissioner's finding to that effect, the Court finds, is supported by the terms of the said instruments and can accordingly not be faulted.’

[15] ‘Axiomatically, the City's ground regarding a competent finding of attempted misuse finds no basis, on the same rationale. That is, the Commissioner's reasoning that Ebrahim's conduct fell outside the instruments relied upon by the City, namely Director's Instruction 5094 and the Corporate Fleet Management Procedure Manual, equally means that no other competent finding would have been open to him.’

[16] ‘In any event, this Court, seized with a review application, is not in cannot determine, afresh any alternative finding that could have been available to the Commissioner without it having been raised at arbitration. It follows that the ground, whether directed at the finding of misuse or at a competent finding of attempted misuse, cannot succeed.’

[18] ‘The Commissioner, in the Court’s view, reasonably found that although the conduct of soliciting a tip, could constitute an inconvenience to the members of the public, it was not of such a nature that Ebrahim could not be rehabilitated.’

[19] ‘Furthermore, the City’s Director’s Instruction No. 5092 provides that “[e]mployees may not request or solicit rewards, gifts, favours and/or hospitality in their capacity as City employees”; it is therefore, the breach of that instruction, and not any inherent dishonesty, which makes the solicitation a misconduct.’

[20] ‘The Court is in agreement with Ms Geldenhuys appearing for Ebrahim that, the provisions of PRECCA emerged for the first time in the City’s heads of argument and were neither argued before the Commissioner nor put to Ebrahim under cross-examination. Accordingly, the Court finds that this ground must fail on that basis.’

[21] ‘The City submits that the Commissioner failed to consider its zero-tolerance policy on soliciting tips from the members of the public. This submission is without merit. The Commissioner in his award found no zero-tolerance policy on the evidence; Director’s Instruction 5092 provides only that an employee found guilty of such conduct would be disciplined.’

[23] ‘The City’s contention on this ground is strained. The principle laid out in the Shoprite Checkers decision that employers are not permitted to inflexibly rely on a zero-tolerance policy finds general application where such a policy exists and is not dependent on the factual circumstances of a case.’

[25] ‘It is apposite to restate the position regarding the determination of dismissal as an appropriate sanction. That determination is a matter statutorily entrusted to the commissioner with reference to the totality of evidence before him.[7] The power of a review court to interfere with the commissioner's finding on the appropriate sanction is circumscribed: this Court does not substitute its own view of the appropriate sanction, and interferes only where the commissioner's conclusion is one that a reasonable decision-maker could not reach.[8] In the matter before this Court, the Commissioner in his award had regard to the provisions of the Code of Good Practice: Dismissal regarding progressive discipline and considered that dismissal is a measure of last resort[9]. He concluded that the misconduct of soliciting a tip in circumstances where the employee had long service, with no previous warnings on a similar offence, did not meet that threshold warranting a dismissal.’

[26] ‘Thus, the grounds relating to the zero-tolerance policy and the misapplication of the Shoprite Checkers decision must accordingly fail.’

[28] ‘Reinstatement is the primary remedy for a substantively unfair dismissal.[10] Section 193(2) of the LRA enjoins the arbitrator, having found a dismissal substantively unfair, to reinstate the employee unless one of the exceptions in that subsection is established; and the exception relied upon by the City, that a continued employment relationship would be intolerable, is provided for in section 193(2)(b). The onus of establishing such intolerability rests on the party asserting it, in this case, the City.’

[29] ‘A mere assertion by the employer that the trust relationship has broken down will not suffice, and the bare assertion of a witness that trust is at an end is not good enough.[11] […] By parity of reasoning with the settled approach to intolerability in the context of constructive dismissal, where it is equally required that intolerability be established objectively, the threshold for intolerability as an impediment to reinstatement is considerably high. Therefore, whether it is the employee who invokes it to prove a dismissal or the employer who invokes it to resist reinstatement, the assessment is one based on the objective evidence placed before a court or a commissioner.’

[30] ‘It is a well-established principle of our law that, the requirement for objective evidence of intolerability is not absolute, in that, where the gravity of the misconduct is such that it inherently strikes at the heart of the trust relationship, the breakdown of trust may be inferred. In those circumstances, evidence of a breakdown in trust is not required.[13] Dishonesty or a stratagem of deceit have been held to fall within that category.[14] In the present matter, however, the Commissioner found the solicitation of a tip fell outside the ambit of dishonesty, a finding which the Court has held to be reasonable. Consequently, the misconduct for which Ebrahim was found guilty of did not call for an inference to be drawn of a breakdown of trust.’

[32] ‘Pharo's response simply failed to meet the required threshold. There is a world of difference between an employer's subjective view on whether a particular misconduct has broken the trust relationship and the objective evidence pointing to such a breakdown in trust. Similar to the cautionary injunction against slavishly deferring to a zero-tolerance policy, it ill behoves a commissioner to defer to the employer's opinion that trust is at an end. However firmly asserted, if it is not borne out by any objective evidence, an employer’s assertion on the breakdown of trust remains just that, an opinion.’

[33] ‘To conclude, it follows that the City did not discharge the onus, under section 193(2)(b) of the LRA, of establishing that the continued employment relationship had become intolerable. The Commissioner's decision to reinstate Ebrahim on terms he considered just and equitable should not be interfered with. Equally, this ground cannot succeed.’

[34] ‘In the exercise of the discretion conferred by section 162 of the LRA, and as the requirements of the law and fairness do not dictate otherwise, the Court finds that a cost order is not appropriate in the circumstances.’

Relief: Condonation for the late filing of the review application was granted and the review application was dismissed, leaving the reinstatement award intact. No order as to costs was made.

Judgment on SAFLII