NEC – Catering Industry v Richard Kundeya & Others SC 35-2016[1]

“Whether or not the mitigating factors outweighed aggravating circumstances was therefore an irrelevant consideration, unless the manner in which that decision was arrived at was shown to be unreasonable.  Once the employer had proven that the respondents had committed a serious dismissible act of misconduct and in the absence of any error, gross unreasonableness or misdirection, their fate lay firmly in the hands of the employer in terms of s 7 (3) of the National Employment Code of conduct.  The discretion whether or not to extend mercy lay with the appellant in its capacity as the employer.”


This case deals with the reversal of a penalty of dismissal by the Labour Court. It also explains the discretion of the employer to dismiss an employee where a serious offence going to the root of the employment relationship is committed.


The respondent employees were employed as chief designated agents by the Appellant company.  They were given notices of transfers in August 2012. They were to work in various locations with effect from 1 January 2013. The transfers were in line with the employer’s policy and practice to rotate designated agents after serving in a particular area for a given period. 3 months’ notice was provided to the employees. The employees objected to the transfers. The Appellant NEC charged the respondents with wilful disobedience to a lawful order in terms of S.I. 15 of 2006. In the alternative they were charged with, any act or omission inconsistent with the fulfilment of the express or implied conditions of the employment contract in contravention of section 4 (a) of the statutory instrument. The disciplinary committee found all four employees guilty as charged and ordered their dismissal from employment. Aggrieved the employees appealed and an arbitrator confirmed their convictions but reduced the penalties from dismissal to final written warnings. The basis for this decision was that the mitigating factors outweighed the aggravating factors. Aggrieved by the arbitrators’ findings, the company unsuccessfully appealed to the Labour Court. The company then appealed to the Supreme Court.

The law

The Supreme Court, first recognised the need for employees to submit to the employer’s authority. It said that this was premised on the common law and statutory law of the country. The National employment Code of conduct merely codifies the common law. Without subordination to an employer’s authority, the Supreme Court argued, there cannot be a contract of employment. The court further found that, because the employees were in open defiance of their employer’s lawful orders, there is no dispute that they were correctly found guilty as charged by the disciplinary committee.  The disobedience was wilful and deliberate, therefore going to the root of their respective contracts of employment.

Further, the Supreme Court confirmed what the court has emphasised on several occasions that the employer has the discretion to dismiss an employee who commits a serious offence. It said:

“It is important to note right from the outset, that where an employee commits a dismissible act of misconduct under s 4 the law vests the discretion whether or not to dismiss the offending employee on the employer alone and no one else”.

The court found that the both the arbitrator and the Labour Court exercised a discretion to alter the penalty, which discretion they could not exercise in terms of section 4 of the National Employment Code of Conduct. Generally, an appellate court, arbitrator or tribunal cannot substitute its own discretion for that of the employer in the absence of unreasonableness.

The court also found that moral and compassionate grounds cannot be used to justify a reversal of a penalty of dismissal.


The Supreme Court allowed the appeal and confirmed the dismissal of the four employees.

Own Comment

Two lessons are apparent in this case. The first lesson is that if an employee commits a serious offence, the employer has a choice to dismiss the employee. Once an employer elects to dismiss there is no tribunal clothed with the power to reverse the dismissal. Reversal of a penalty given by an employer can only be done in exceptional circumstances like in instances where a disciplinary tribunal laboured under a wrong principle of the law or facts. See also ZIMPLATS v Ronald Godide (SC 2 – 2016) discussed above.

Secondly, the court emphasised that moral and compassionate grounds cannot be used to reverse a decision made by a disciplinary committee or authority.

[1]              National Employment Council for the Catering Industry v Richard Kundeya and Others SC 35-2016.


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