PRACTICAL LESSONS FOR DISCIPLINARY ACTION: 

THREE LABOUR COURT CASES THAT REMIND US WHY CONTEXT IS EVERYTHING

Based on a webinar presented by Ingrid Lewin (February 2026)

When reviewing recent Labour Court decisions involving the discipline and subsequent dismissal of an employee, one theme stands out more clearly than ever - context matters.

Increasingly, courts are moving beyond a rigid checklist approach to misconduct and asking deeper questions, such as:

• What was happening at the time?
• What pressures existed?
• Was there real prejudice?
• Was dismissal truly fair in the circumstances?

In this article, we examine three recent cases — involving a municipal official, a school principal during COVID-19, and a Europcar employee — all of which demonstrate how context can shape the outcome of disciplinary action.

CASE 1: DISCIPLINING A SHOP STEWARD — WHEN IS PROCEDURE TRULY UNFAIR?

SAMWU obo Mvinjelwa vs City of Tswane Metropolitan Municipality & Others

This first case involved a municipal official who was also a shop steward. After an altercation with a member of the public — which escalated into an assault allegation — he was dismissed. At arbitration, the dismissal was found to be both substantively and procedurally fair. The union then took the matter on review.

The Legal Issue: Item 4(2) of the Code of Good Practice

Item 4(2) of Schedule 8 of the LRA requires employers to inform and consult the union before disciplining a shop steward. This provision exists for historical reasons. It was introduced to prevent the  victimisation of shop stewards, particularly during the turbulent early years of trade union recognition in South Africa.

The court, however, clarified that Item 4(2) is a guideline, not a rigid technical rule.

In this case:

• The union was informed of the disciplinary matter.
• The matter was postponed to allow for consultation.
• The union had five months’ notice before the disciplinary hearing resumed.

The court found no evidence of prejudice to the employee or the union.

The Court’s Key Finding

Minor procedural deviations do not invalidate a disciplinary process if the purpose of the procedural guideline is met. The purpose of Item 4(2) is transparency and protection against victimisation — not technical perfection.

Key Takeaways

• Purposeful compliance is required — not procedural formalism.
• Prejudice is the decisive factor in procedural fairness.
• The arbitrator’s findings will stand if they fall within a reasonable range.
• Employers should still notify unions early and document all steps.

As a postscript to this case, it is important to note that if the requirement to consult is included in a collective agreement, it becomes binding and not merely guidance.

CASE 2: THE PRINCIPAL WHO REFUSED TO REOPEN A SCHOOL DURING COVID-19

Wesley Neumann vs Western Cape Education Department

The second case involved a school principal who failed to reopen a school during the height of the COVID-19 pandemic after he was instructed to do so by the Western Cape Education Department.

At the time:

• Infrastructure at the school was inadequate.
• PPE was unavailable.
• Many staff members were absent due to comorbidities and COVID-19 infections.
• There were reports of severe sanitation failures at the school.
• Government Gazette directives stated that employees could refuse to work if there was a serious and imminent COVID risk.

The principal raised concerns, escalated them properly, warned the School Governing Body, and facilitated appropriate communication with parents.

He was charged with six counts of misconduct, including:

• Failure to carry out lawful instructions
• Disrespectful and insolent behaviour
• Bringing the department into disrepute
• Incitement
• Breach of social media policy

He was then dismissed.

What the Court Found

The Labour Court overturned most findings against the employee. Crucially, it held that the arbitrator had failed to properly consider:

• The extraordinary pandemic context.
• The constitutional principle that the best interests of the child are paramount
• The lack of evidence of reputational harm
• Inconsistent discipline (other principals were not charged for similar conduct)

The court emphasised that an instruction must be lawful and reasonable, and that where children’s lives and safety are at risk, constitutional protections override administrative authority.

Key Takeaways

• Context is not peripheral — it is central.
• Instructions must be reasonable, not merely authoritative.
• Consistency in discipline matters.
• Reputational harm must be proven — not assumed.
• Arbitrators must base decisions on evidence, not inference.

This case reminds us that in high-stress, extraordinary environments (like the COVID-19 pandemic), the surrounding circumstances may fundamentally alter how conduct is assessed.

CASE 3: THE EUROPCAR “GOOD SAMARITAN”

Europcar South Africa vs Pumeza Glenn-Poswa

A Europcar employee used a company vehicle without permission while helping a stranded motorist late at night. The company had a strict rule: unauthorised use of vehicles was a dismissible offence.

When applying fundamental principles it is clear that the employee breached a known and valid rule, and therefore, on paper, a guilty finding and dismissal would appear to be justified. The court, however, emphasised the importance of examining the mitigating factors in the case, which were significant:

• The employee had 11 years of unblemished service
• Being a “Good Samaritan” led to the misconduct being committed
• No dishonesty
• No personal gain
• No evidence of operational harm to the business

The court therefore found dismissal to be too harsh in the circumstances and reinstated the employee.

Key Takeaways

• Context matters. Compelling mitigating circumstances may justify deviation from strict application of  the employer’s code of conduct.
• Fairness and consistency can sometimes outweigh mechanical rule enforcement.

Remember - consistency does not require identical outcomes, it requires similar treatment for similar facts. Helping a stranded motorist is surely not the same as taking a vehicle for a joyride.

THE EMERGING THEME: A SHIFT TOWARD CONTEXTUAL FAIRNESS

Across all three cases, one clear pattern emerges: Courts are increasingly asking not just “Was there misconduct?”, but rather “Was dismissal fair in this context?”

We are seeing a distinct move away from rigid formalism toward contextual reasoning.

Practical Lessons for Employers:

1. Don’t treat the Code of Good Practice as a technical trap - Focus on purpose and evidence of real prejudice.
2. Test the reasonableness of instructions - Authority alone is not enough.
3. Document consistency — but assess similarity of facts carefully
4. Distinguish guilt from sanction - An employee can be guilty but dismissal may still be unfair.
5. Always ask: What is the broader context?

FINAL THOUGHTS

Discipline does not exist in a vacuum. Workplaces are environments shaped by history, stress, relationships, and sometimes crisis. The Labour Court is increasingly alive to this reality. As practitioners, perhaps the most important question we can ask is not “Can we dismiss?” but rather “Is dismissal fair — here, now, and in these circumstances?”

Because increasingly, that is the question the courts are asking.