An external chairperson at a disciplinary enquiry dismissed an employee, but subjected the dismissal to a suspensive condition. The sanction of dismissal was suspended with a period of 10 years, on condition that the employee is not found guilty of any act of misconduct similar to the ones which she was charged with and found guilty of. The Labour Court found the chairperson’s finding contradictory to the Code of Good Practice: Dismissal, and the principles of legality and parity. The chairperson’s ruling on sanction was set aside, and substituted with an order that the employee is dismissed with immediate effect.

National Lotteries Commission v Mafonjo and another (JR48/2020) ZALCJHB 184 (23 June 2023)

Case summary

Ms Mafonjo was employed by the National Lotteries Commission (NLC). The chairperson, Advocate H.O.R Modisa SC, found the employee guilty of two charges of gross dishonesty, and two charges of breach of contractual obligation.

The Court stated that if elementary legal research had been conducted, the chairperson would have known that it is trite law that any misconduct peppered with gross dishonesty ought to have led to an immediate dismissal.

The NLC approached the Court to set aside the ruling of the chairperson, and to substitute the ruling with an order summarily dismissing the employee. Ms Mafonjo argued that the chairperson did not commit any irregularity as the sanction is an alternative to dismissal, although the NLC contended that the mere findings of dishonesty were sufficient enough to summarily dismiss her.

The chairperson failed to cite any case law in his four-page ruling and further failed to take into account that the NLC’S Disciplinary Policy states that the recommended sanction is dismissal if an employee is found guilty of dishonesty as a first offence. The Court reiterated that the Code of Good Practice: Dismissal does not make provision for a suspended dismissal, and neither does the Disciplinary Policy of the NLC.

The Court also rejected the chairperson’s statement that the employee’s personal circumstances are exceptional. The employee’s mitigating factors could not be taken into account in relation to the serious acts of misconduct. Furthermore, the chairperson could not expect the NLC to keep Ms Mafonjo in its employ with the label of gross dishonesty on her forehead for 10 years. This does not accord with the principle of legality.

The chairperson failed to apply his mind in that Ms Mafonjo had a fiduciary responsibility towards the NLC for the duration of the employment relationship. The Court held that a civilised system of jurisprudence should have no room for any dishonest employee to continue reaping the benefits of any institution funded by the taxpayer. The NLC has no confidence in the continued employment of Ms Mafonjo, and it is justifiable.

The Court further held that irrespective of the employee’s years of service, it is clear that the trust relationship had irretrievably broken down between the parties. Sethene AJ stated that keeping Ms Mafonjo’s dismissal suspended for 10 years will assault the principle of parity and if the chairperson’s ruling on sanction were to stand, it may spell doom and have dire consequences for the NLC’s workplace.

The Court ordered that the review application be upheld, and that the chairperson’s ruling on sanction be set aside and substituted by an order that the employee is dismissed with immediate effect.

Issued by the Labour Guide