The Labour Court Draws the Line on Procedural Perfection

The Code of Good Practice is guidance, not gospel, and employers aren’t expected to perform procedural gymnastics to prove fairness. This article examines the recent Labour Court judgment (SAMWU obo Mvinjelwa v City of Tshwane Metropolitan Municipality & Others (JR1131/2017) [2025] ZALCJHB 476) on procedural fairness in relation to Schedule 8 of The Code of Good Practice: Dismissal (2025) and its implications for employers in managing disciplinary hearings.

How far must an employer go to ensure procedural fairness?

That question has long haunted disciplinary proceedings, especially when the accused employee is a shop steward. In a recent Labour Court decision, SAMWU obo Mvinjelwa v City of Tshwane Metropolitan Municipality & Others (JR1131/2017) [2025] ZALCJHB 476, the Court provided timely clarity: fairness must be genuine, not merely formal.

The Clash at the Counter

The case began at an ordinary public licensing centre in Tshwane. Mr Silulami Mvinjelwa, a Chief Licensing Officer and shop steward, became embroiled in a heated altercation with a member of the public over missing documentation. The encounter turned physical; the complainant alleged that Mvinjelwa slapped her, while he insisted she had verbally abused him.

An internal disciplinary hearing followed. After considering testimony from several witnesses, the municipality dismissed Mvinjelwa for assault. The South African Local Government Bargaining Council (SALGBC) later upheld the dismissal as substantively and procedurally fair.

The South African Municipal Workers’ Union (SAMWU) took the matter to the Labour Court, arguing that the dismissal was procedurally flawed because the City failed to comply with Item 4(2) of Schedule 8 to the LRA, the provision requiring employers to inform and consult with a union before disciplining a union representative or office-bearer.

The Heart of the Dispute

The union’s argument rested not on the evidence of assault but on procedure. It is alleged that the employer’s delay in notifying the union invalidated the process and violated the protective purpose of Schedule 8. The municipality countered that although the union had not been notified immediately, it was given ample opportunity to participate before the hearing resumed, and therefore no prejudice occurred.

The Labour Court had to decide whether the Commissioner’s award, finding the dismissal both substantively and procedurally fair, was one a reasonable decision-maker could reach under the Sidumo test.

Fairness vs. Formality

The Court reaffirmed that Schedule 8 serves as a guide to fairness, rather than a rigid checklist. Its purpose is to ensure that shop stewards are not disciplined in secret or without the knowledge of their union, not to give them immunity from accountability.

Judge Vukeya made it clear: a failure to tick every procedural box does not equal procedural unfairness. What matters is whether the employee or the union suffered real prejudice as a result of the deviation.

Here, the evidence showed that:

• The union had been formally informed after the initial hearing date.
• The hearing was explicitly postponed to allow union consultation.
• The union had five months’ notice before the hearing reconvened.

In these circumstances, the purpose of consultation, to allow the union to advise and represent its members, was fully achieved.

A Reasonable Decision, Not a Perfect One

The Court went on to assess the substance of the dismissal. The Commissioner accepted the complainant’s version as credible, noting that the event had occurred publicly and that multiple witnesses had corroborated her account. Notably, the absence of a medical report was not fatal to the case; the assault was minor, and the Commissioner’s reliance on direct witness evidence was reasonable.

Applying the Sidumo and Herholdt principles, the Court held that the Arbitrator’s findings were rationally connected to the evidence and within the range of reasonableness. The review application was therefore dismissed.

Beyond Procedure: The Message for Employers

This case carries broader lessons for the workplace.

Too often, procedural fairness is treated as a mechanical exercise, a list of formalities to be performed to avoid a technical defect. But the law expects more nuance. Fairness is about substance, not ceremony. When an employer’s conduct shows a genuine attempt to involve the union, provide an opportunity to be heard, and maintain transparency, a minor procedural imperfection will not invalidate a dismissal.

However, the Court’s tolerance has limits. Employers who completely ignore consultation requirements or deliberately exclude a union from disciplinary processes will still fall foul of Schedule 8.

Rebalancing Discipline and Rights

The judgment underscores a pragmatic truth: the law protects fairness, not flaws.

Employers must respect the consultation requirement, but they need not fear that every administrative slip will undo an otherwise fair process. In the words of the Court, the Code of Good Practice was never meant to shield employees from accountability; it exists to guide employers in exercising their authority responsibly. For shop stewards, the decision serves as a reminder that representation entails both rights and responsibilities. Holding office in a union does not place one above discipline; it simply ensures that due process is followed.

Final Thought

This case is not just about a slap at a counter; it’s about the balance between protection and accountability.
The Labour Court has drawn that balance with precision: procedural fairness must serve justice, not obstruct it. When employers act in good faith, consult transparently, and base their decisions on credible evidence, discipline will withstand review, even if diplomacy briefly falters.

Tips:

• Consult early, but document everything.

Notify the union of any intended disciplinary action against its representative as soon as possible. If timing issues arise, record the reasons and ensure the union still has a fair opportunity to engage before the hearing proceeds.

• Focus on fairness, not formalism.

The Labour Court judges real fairness by outcomes, whether the employee and union were genuinely given the chance to participate, not by procedural perfection.

Written by Su-Mari Kemp, Senior Dispute Resolution Official (CEO SA)