Discipline Over Diplomacy

Labour Court Confirms Schedule 8 Is a Guideline — Not a Loophole

Case: SAMWU obo Mvinjelwa v City of Tshwane Metropolitan Municipality & Others (JR1131/2017) [2025] ZALCJHB 476
Court: Labour Court, Johannesburg

Disciplinary processes involving union representatives often test the boundaries of fairness, procedure, and practicality. A recent Labour Court judgment has reaffirmed that Schedule 8 of the Labour Relations Act (LRA) — the Code of Good Practice on Dismissal — is a guideline, not a rigid rulebook.

The case of SAMWU obo Mvinjelwa v City of Tshwane Metropolitan Municipality provides a valuable lesson for HR and IR professionals: reasonableness, not perfection, is the measure by which fairness is judged.

Case Background

Mr. Silulami Mvinjelwa, a Chief Licensing Officer and shop steward for SAMWU, was dismissed after allegedly assaulting a member of the public at a vehicle licensing centre. The incident stemmed from a dispute about documentation, during which Mvinjelwa allegedly slapped the complainant.

He denied the allegation, claiming that he was verbally provoked. The CCMA (SALGBC) found the dismissal both substantively and procedurally fair. SAMWU applied to the Labour Court to review the award, arguing that the employer failed to follow the procedural safeguards in Item 4(2) of Schedule 8, which requires consultation with a union before disciplining a union representative.

The Legal Question

The Court had to decide whether the commissioner’s finding was one that a reasonable decision-maker could reach, applying the Sidumo test.

Legal Framework Utilised

Sidumo v Rustenburg Platinum Mines Ltd (2007): Review courts assess reasonableness, not correctness.
Herholdt v Nedbank Ltd (2013): A review is justified only if the arbitrator’s decision is unreasonable or misconceived.
Item 4(2) of Schedule 8 (LRA): Employers should consult with a trade union before disciplining a shop steward.
BIFAWU v Mutual & Federal Insurance Co Ltd (2006): The Code is a guideline, not binding law. Non-compliance without prejudice doesn’t invalidate discipline.

Court’s Findings

Substantive fairness:

The commissioner reasonably preferred the complainant’s evidence, which was consistent and credible, and corroborated by witnesses. The absence of a J88 medical report was immaterial — the incident was minor but sufficiently proven.

Procedural fairness:

Although the union was formally notified after the initial hearing date, no actual prejudice occurred. The hearing was postponed allowing consultation, and the union had five months’ notice before proceedings resumed.

The Court held that the commissioner’s findings were rationally connected to the evidence and thus within the range of reasonableness.

Judgement

The Labour Court dismissed the review application, confirming that both the procedure and the outcome of the dismissal were fair.

HR & Employer Insights

Schedule 8 is guidance — not gospel.
Minor deviations from the Code do not automatically invalidate disciplinary action if fairness and due process are maintained.
Union consultation remains crucial.
Always document communication with unions when disciplining shop stewards. Lack of evidence of consultation is often the first procedural flaw challenged.
Substance over form.
The Court will focus on whether the process was fair in effect, not whether every procedural box was ticked.
Train HR and line managers.
Many disputes arise from misunderstanding what the Code of Good Practice actually requires. Routine HR/IR training can prevent costly errors.

Expert Commentary

Organisational psychologist Dr. André Vermeulen notes that perceptions of fairness strongly influence employee engagement and trust in leadership:

“Even where outcomes are unfavourable, transparent and consistent processes sustain organisational trust.”

Dr. André Vermeulen

Labour law academic Professor Alan Rycroft further cautions that:

“Discipline should serve a corrective purpose, not a mechanical one. The Code of Good Practice should guide managers toward fairness, not restrict their ability to act.”

Professor Alan Rycroft

Bottom Line

Reasonableness, not perfection, defines fairness.

If no prejudice occurs and the employer acts in good faith, the dismissal process will likely withstand scrutiny — even if minor procedural slips occur.

At HR Consult, we guide employers through complex disciplinary and union-related matters with a focus on legal compliance, employee fairness, and risk reduction.

If your organisation needs assistance reviewing its disciplinary procedures, EE Committee processes, or shop steward protocols, contact us at

📞 Partner with HR Consult to strengthen your disciplinary policies, protect your business, and uphold fairness every step of the way.

Office: 012 997 0037

E-mail: info@hrconsultsa.co.za

Adapted by HR Consult, specialists in South African labour and employment law compliance.

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