- The Labour Court found that repeated misconduct, prior warnings, and defiance of a workplace instruction were not enough to justify automatic dismissal.
- Neo Thlame was absent from work and failed to obey a manager’s instruction to report for duty while already on a final written warning.
- Judge Gandidze dismissed MTN’s application for leave to appeal and upheld the order reducing Thlame’s back pay to six months.
The Labour Court has found that even repeated misconduct, being absent from work, defiance of a manager’s instruction, and a string of prior warnings were not enough for automatic dismissal.
In dismissing MTN’s application for leave to appeal, Judge T Gandidze held that while former employee Neo Thlame was guilty of misconduct, dismissal was too harsh a sanction in these circumstances.
The judge said that Thlame’s lack of remorse, together with the gravity of the misconduct, his defiance of a manager’s instruction, and his previous warnings, were all factors considered when the court limited his back pay to six months.
The dispute began after MTN tried to overturn a November 2025 judgment that partially reviewed and set aside an arbitration award in Thlame’s favour. In that earlier ruling, the court found Thlame guilty of misconduct because the commissioner had not expressly ruled on that issue. However, the court found that dismissal was too severe and reduced the back pay owed to Thlame to six months.
Thlame’s misconduct was serious and at the heart of MTN’s case. He was absent from work and failed to obey a manager’s instruction to report for duty. He was not a first-time offender.
MTN told the court that Thlame had already received counselling, progressive discipline had been applied, and he was on a final written warning when this incident occurred. MTN also pointed to what it described as Thlame’s lack of remorse, arguing that these factors made dismissal the only appropriate sanction.
MTN says reinstatement sends the wrong message
A central argument advanced by MTN was that reinstating an employee with that disciplinary record would create what it called a chilling effect in the workplace. The company argued that reinstating an employee who has been counselled and is already on a final written warning sends a message that someone who repeats the same misconduct can still be reinstated.
Judge Gandidze rejected that argument and added that the main judgment did not and could never have established such a principle.
The court held that its earlier judgment did not create any principle allowing repeated misconduct to be overlooked, nor did it set a rule that an employee on a final written warning cannot be reinstated. The court found no basis for MTN’s claim that reinstatement in this case created a broader workplace rule.
MTN also submitted that it is trite that an employer cannot be expected to reinstate an employee who is not remorseful. In support of that argument, the company relied on previous decisions, including cases dealing with serious workplace misconduct.
Judge Gandidze found that those authorities did not establish what MTN claimed. Referring to one of the authorities MTN relied on, the court noted that finding a lack of remorse can make reinstatement difficult is very different from saying an employee who shows no remorse can never be reinstated.
The court weighs all factors
Judge Gandidze held that a lack of remorse does not outweigh all other factors. Whether it justifies dismissal in a given case depends on the specific facts.
The court examined the judgments relied upon by MTN, including decisions involving fraud, assault, and other serious misconduct, and found that those cases reinforced the need to consider all relevant factors when deciding a sanction. They did not create an automatic rule requiring dismissal when remorse is absent.
Judge Gandidze stated that it is not in every case where an employee shows no remorse that dismissal is the only option. The court also rejected MTN’s claim that reinstating Thlame violated employers’ constitutional right to fair labour practices, describing that argument as an exaggeration of the real issue. Judge Gandidze held that the case did not raise a constitutional issue.
MTN further relied on the court’s earlier finding that the commissioner had been biased against the company and its witnesses. The court held that this finding, on its own, could not lead to a conclusion that the award was reviewable, an issue already dealt with in the main judgment.
Back pay reduced to reflect seriousness
Although the court rejected MTN’s argument that dismissal was the only fair sanction, it accepted that Thlame’s conduct deserved consequences. Judge Gandidze explained that Thlame’s lack of remorse, the seriousness of the misconduct, his defiance of a manager’s instruction, and his previous warnings were all considered when reducing his back pay.
Judge Gandidze explained that Thlame’s lack of remorse was not the decisive factor in deciding the sanction. The judge added that Thlame’s back pay was reduced, so he did not get off scot-free.
Having considered MTN’s grounds of appeal, the Labour Court found there was no reasonable chance that the Labour Appeal Court would reach a different conclusion on sanction or back pay. MTN’s application for leave to appeal was dismissed, leaving the earlier order in place.
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