South African employees can break the rules and still not be automatically fired

South African employers cannot automatically dismiss employees for breaching a zero-tolerance policy, even when the misconduct is established.

A recent Labour Court judgment reaffirmed that employers must still justify dismissals on a case-by-case basis.

This includes the employee’s length of service, disciplinary record, and prospects for corrective discipline.

This is according to CDH Employment Law Counsel JJ van der Walt, who said the ruling reinforces a principle established in the 2015 case of Shoprite Checkers v Tokiso Dispute Settlement and Others.

The latest judgment, City of Cape Town v IMATU obo Ebrahim and Others, was delivered on 5 October 2026.

The court dismissed the City of Cape Town’s application to review an arbitration award that reinstated an employee who had been dismissed for soliciting a tip.

The dispute involved an employee who had worked for the City of Cape Town for 34 years without a disciplinary record.

Ebrahim was a senior operational supervisor employed in the Urban Waste Management directorate.

A member of the public alleged that Ebrahim had asked for a tip to remove two bags of refuse outside his home in May 2023.

The city charged him with misusing a municipal vehicle to solicit money from residents and subsequently dismissed him.

However, the matter proceeded to arbitration at the South African Local Government Bargaining Council, where the commissioner separated the charge into two allegations.

The commissioner found that the alleged misuse of the municipal vehicle had not been established, but that Ebrahim had solicited a tip on a balance of probabilities.

Despite finding misconduct, the commissioner concluded that dismissal was too harsh for a first offence, given Ebrahim’s 34 years of service and clean disciplinary record.

The commissioner ordered his reinstatement with limited back pay and directed the city to issue a final written warning valid for 12 months.

The city challenged the award, arguing that the commissioner had failed to give sufficient weight to its zero-tolerance approach and had misapplied the principles established in the Shoprite Checkers case.

What the Ebrahim case means for dismissals in South Africa

The Labour Court rejected the city’s arguments and reaffirmed that a zero-tolerance policy does not automatically make dismissal a fair sanction, Van der Walt said.

First, an employer must prove that the policy exists and applies to the misconduct in question. In this case, the commissioner found insufficient evidence of a zero-tolerance policy.

The city’s own instruction stated that an employee found guilty of soliciting would be disciplined, but did not prescribe dismissal as the automatic outcome.

More importantly, the court confirmed that even a clearly established zero-tolerance policy does not, on its own, justify dismissal.

The city argued that the Shoprite Checkers precedent should be limited to its particular facts, as the employee in that case had pleaded guilty, shown remorse, and not disputed the underlying allegations.

The court described this argument as “strained” and rejected it. It held that the principle that employers may not rely inflexibly on zero-tolerance policies applies generally, regardless of the circumstances of a case.

This means that employers may use such policies to demonstrate how seriously they regard particular misconduct, but they must still justify dismissal on the evidence.

The judgment also reaffirmed that it is the commissioner’s responsibility to consider the facts and decide on an appropriate sanction, van der Walt explained.

A reviewing court will interfere with that decision only when it falls outside the range of conclusions a reasonable decision-maker could reach.

In Ebrahim’s case, the commissioner considered the Code of Good Practice: Dismissal and treated dismissal as a last resort.

The employee’s long service and clean disciplinary record were relevant to the question of whether corrective discipline was appropriate.

The Labour Court found that the commissioner’s decision could stand and made it clear that an employer’s preferred sanction does not automatically override an arbitration award.

Employers must prove that trust has broken down

The city also argued that Ebrahim’s conduct had destroyed the employer-employee trust relationship.

However, the court found that while soliciting a tip constituted misconduct, it did not amount to dishonesty.

A breakdown in trust could not be inferred from the conduct. The city had also failed to provide enough evidence to support its assertion that trust had been destroyed.

The court cautioned against automatically accepting an employer’s view that the relationship had broken down.

This is important because employers often rely on an alleged loss of trust to justify dismissal, particularly where misconduct involves dealings with members of the public.

The court found that the city had not discharged its burden under section 193(2)(b) of the Labour Relations Act. As a result, it dismissed the review application.

The judgment also shows the importance of presenting all relevant grounds and evidence during arbitration, Van der Walt said.

The court declined to consider the city’s reliance on the Prevention and Combating of Corrupt Activities Act, which was raised only in its written arguments on review.