Masitho and Others v Cape Town City Council (C 168/98) [1999] ZALC 102 (22 June 1999)

Masitho and Others v Cape Town City Council (C 168/98) [1999] ZALC 102 (22 June 1999)

The court found that the applicants were not genuinely sick and that their sick leave applications were a pretext for avoiding work due to unhappiness with instructions. The ASO's permission for sick leave was given for an illegitimate reason and did not absolve the applicants of responsibility. The splitting of charges was unfair, but the alternative charge of refusing to do duty after receiving an instruction was valid for certain applicants. The respondent acted inconsistently by dismissing the applicants while other employees in similar circumstances received only final written warnings. The differentiation in punishment between Nongqokwana and the other applicants was unjustified, as...

Citation
[1999] ZALC 102
Parties
Applicant: Thembile Mark Masitho & 7 Others; Respondent: Cape Town City Council
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
22 June 1999
Case Number
C 168/98
Procedural Posture
Review Application / Judgment
Outcome
Dismissal of the applicants was found to be unfair. Applicants are reinstated with a final written warning and no compensation is awarded.
Judges
Mlambo
Legal Topics
Unfair Dismissal, Inconsistent Discipline, Sick Leave Abuse, Reinstatement, Disciplinary Procedure
Labour Law Unfair Dismissal Inconsistent Discipline Sick Leave Abuse Reinstatement Disciplinary Procedure

Case Brief

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Parties

Thembile Mark Masitho & 7 Others

Applicant

Cape Town City Council

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the dismissal of the applicants was substantively and procedurally fair.
  2. 2 Whether the employer acted inconsistently in disciplining the applicants compared to other employees.
  3. 3 Whether the applicants were genuinely sick or abused sick leave to avoid work.

Ratio Decidendi

The court found that the applicants were not genuinely sick and that their sick leave applications were a pretext for avoiding work due to unhappiness with instructions. The ASO's permission for sick leave was given for an illegitimate reason and did not absolve the applicants of responsibility. The splitting of charges was unfair, but the alternative charge of refusing to do duty after receiving an instruction was valid for certain applicants. The respondent acted inconsistently by dismissing the applicants while other employees in similar circumstances received only final written warnings. The differentiation in punishment between Nongqokwana and the other applicants was unjustified, as...

Court Disposition

Dismissal of the applicants was found to be unfair. Applicants are reinstated with a final written warning and no compensation is awarded.

Orders

  • The applicants are reinstated on terms that would apply to them had they not been dismissed.
  • The applicants must tender their services within 5 days of this order.