You Might Be Fired Even After Decades of Flawless Service

Having an excellent service record does not save you from being dismissed for serious misconduct.

INTRODUCTION

The principle that “misconduct can trump a long, unblemished record” is a recurring theme in labour law. It acknowledges that while a lengthy and exemplary service record is an important mitigating factor in disciplinary matters, it does not provide immunity against dismissal for serious misconduct. This concept was reaffirmed in the Labour Appeal Court’s decision in Mgaga v Minister of Justice and Correctional Services and Others.
 

SUMMARY OF FACTS

Mr Mgaga hereinafter referred to “the Employee” had been employed by the Department of Correctional Services, hereinafter referred to as “the Employer” since 1985. While employed in the position of Head of Waterval Prison, an inmate was stabbed and later succumbed to his injuries. The Employee was required to report assaults between inmates to the Area Commissioner within one hour of it taking place (at least telephonically). The Employee failed to report the stabbing to his superiors timeously, and only made a report four days later.

As a result, the Employee was placed on suspension and an investigation was instituted. While on suspension, the Employee was informed at 7am that he was required to attend a meeting with the Regional Commissioner at 13h00 the same day, which meeting was 300km away from Waterval Prison. The Employee stated that he would not attend the meeting, and, in any event, he could not do so as he was suspended. A few hours later, the Area Commissioner again informed the Employee of the meeting and provided him with a letter that his suspension was lifted for the day. However, the Employee stated that he would only attend the meeting if his suspension was lifted all together.

Thereafter, the Employee was subjected to two separate disciplinary hearings, one in respect of his failure to timeously report the stabbing incident and the other for his refusal to attend the meeting with the Regional Commissioner. The Employee was found guilty of the allegations of misconduct and a sanction of dismissal was imposed. Aggrieved by the decision, the Employee referred an unfair dismissal to the relevant Bargaining Council and sought reinstatement.
 

CCMA ARBITRATION

In relation to the allegation of a failure to report the stabbing incident timeously, the Commissioner found that there was a rule that was known to the Employee, and he failed to comply with it. Further, in relation to the allegation of insubordination, the Commissioner found that the Employee’s conduct was a wilful disregard of a lawful instruction. Having found the Employee guilty of these allegations, the Commissioner was of the view that the only appropriate sanction was that of dismissal.

The Employee then applied to the Labour Court (LC) to review and set aside the award.
 

LABOUR COURT REVIEW PROCEEDINGS

The Labour Court found that it was evident that the Employee had committed two serious acts of misconduct. With reference to the test on review, it could not be said that it was a decision that a reasonable decision-maker could not have arrived at, and that the dismissal of the employee, even on the two counts of misconduct, was a fair sanction.

The Employee took the Labour Court’s judgment on appeal and argued, among other things, that:

1. the Commissioner and Labour Court failed to have regard to the unreasonableness of the instruction for the Employee to attend a meeting on the same day;
2. that he had in fact reported the stabbing to the inspecting judge; and
3. that his dismissal for a first time-offender was too harsh, especially having regard to his unblemished record of 29 years of service.

APPEAL ROCEEDINGS

The Appeal Court noted that the Employee’s argument was not that the instruction was unlawful, but that it was not reasonable given the distance he was required to travel. In this regard, the Employee was informed of the meeting at 7am and he had sufficient time to make the necessary arrangements to attend the meeting. The Employee, however, had no intention of attending the meeting. Further, the Employee demanded that his suspension be lifted altogether for him to attend the meeting. This again indicated that he had no intention of attending. The Appeal Court found that the Employee’s conduct in imposing conditions to carry out a lawful and reasonable instruction was ‘quite outrageous’.

As regard to the Employee’s failure to report the assault, the Appeal Court found that the Employee’s attempt to justify his failure by claiming that he had reported the incident to the inspecting judge was puzzling. The Employee knew the rule that he was required to report the incident to the Area Commissioner within the hour. It accordingly defied common sense that he would do everything else but what he should do in terms of the rule. It is common cause that the Employee failed to report the incident to the Area Commissioner.

Lastly, in respect of the issue of sanction, the Appeal Court noted that the Employee was the head of a prison, a position of enormous responsibility. A prison is a volatile environment and those responsible for running it must know that rules must be followed to maintain discipline. The Employee knew the rule but deliberately failed to comply with it. This misconduct was then compounded by a refusal to carry out a lawful and reasonable instruction. The Employee’s actions displayed a disregard for authority which could not be tolerated in the prison environment. The fact that the Employee had 29 years of unblemished service could accordingly not save him from the sanction of dismissal.

This case reinforces several pivotal legal principles in South African labour law, particularly regarding disciplinary procedures and the enforcement of workplace rules. The judgment provides important insights for both employers and employees, including:

1. Serious Misconduct Justifies Dismissal – the judgment reaffirms that serious misconduct, such as failing to perform critical duties (e.g., reporting a fatal incident promptly) or insubordination, can justify dismissal, even for long-serving employees with a previously spotless record. The court emphasized that the gravity of the misconduct overrides the mitigating factor of lengthy service when the misconduct undermines the trust relationship between employer and employee.
2. Trust Relationship – Particularly in roles involving public trust, such as a prison head, maintaining integrity and accountability is non-negotiable. A breach of trust, especially by a senior employee, may render the employment relationship irreparable, justifying dismissal regardless of mitigating factors. This aligns with the principle articulated in Sidumo v Rustenburg Platinum Mines Ltd, where the Court confirmed that dismissal is appropriate when misconduct makes the employment relationship intolerable.
3. Importance of Following Workplace Rules and Procedures – This case highlights the necessity of adhering to workplace policies, especially in environments with strict protocols, such as correctional services. Failure to comply with established reporting requirements and directives not only violates workplace rules but can have broader institutional implications, warranting severe disciplinary action.
4. Long Service is a Mitigating but Not Absolute Factor – While long service and a clean disciplinary record are significant mitigating factors, they are not decisive where misconduct is severe. The court noted that such factors cannot shield an employee from the consequences of actions that fundamentally undermine their ability to fulfil their duties.
5. Leadership Accountability – Employees in leadership or senior roles are held to higher standards of accountability and responsibility. The judgment underscores that leaders must set an example in adherence to rules and regulations, and any failure in this regard can have serious repercussions.

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© Maserumule Corporate Employment Law – March 2025