In the recent case of Mahonono v National Heritage Council and Others (J742/2022) 2022 ZALCJHB 188 (18 July 2022), the matter involved Ms. Mahonono (employee), who had been charged by the National Heritage Council (employer) for non-compliance with its supply chain management policy, and breach of the Public Service Act, of 1994. The employee was placed on unpaid suspension pending the finalisation of a disciplinary inquiry.

Following various delays in the disciplinary inquiry, which the employer attributed to the employee, the employer, through its CEO, issued a letter to the employee alleging that her behaviour at the disciplinary inquiry amounted to a repudiation of the employment contract and that the employer was entitled to circumvent its policies to conclude the disciplinary inquiry in an expedited manner. Furthermore, that the employee’s legal representative made allegations which implied that the employee no longer trusted the employer. In terms of the latter, the employee was given an opportunity to provide written submissions as to why her repudiation should not be accepted. The employee, in her submissions, alleged that the employer was attempting to establish a process parallel to the disciplinary inquiry in conflict with its own policies and that this amounted to a breach of the provisions of her contract of employment. The employee was dismissed and approached the Labour Court on an urgent basis.

Proceedings in the labour court

The Labour Court found that the matter should be treated as urgent. On the merits, it found that the employer was not entitled to bypass its own disciplinary policy and procedure and cancel the contract of employment based on the common law principle of repudiation. The court held that the employer’s decision to circumvent the ongoing disciplinary inquiry and its own policies, which were incorporated in the employee’s contract of employment, constituted a breach. The court ordered, amongst other things, that the employer reinstate the employee (who had not acted in a manner that indicated that she was not interested in taking part in the disciplinary inquiry) and that the employer must comply with its own policies. The court granted the order for specific performance and went further to show its disapproval of the employer’s conduct by ordering the employer to pay the employee’s costs.

Take home points?

Employers are required to abide by and follow their own policies, more so when such policies have been incorporated in their employees’ contracts of employment. A failure by the employer to follow its own policies may very well amount to a breach, giving employees a remedy of specific performance and being awarded a cost order against the employer.