Case Comments: Blurring the Lines Between Incapacity, Misconduct and Operational Requirements: Zililo v Maletswai Municipality
| Jurisdiction | South Africa |
| Citation | (2009) 21 SA Merc LJ 426 |
| Published date | 25 May 2019 |
| Pages | 426-432 |
| Author | Alan Rycroft |
| Date | 25 May 2019 |
Blurring the Lines Between Incapacity,
Misconduct and Operational Requirements:
Zililo v Maletswai Municipality
ALAN RYCROFT
University of Cape Town
1 Introduction
It is now required and accepted that an employer seeking to dismiss an
employee has to fit the dismissal into one of three categories. Section 188 of
the Labour Relations Act 66 of 1995 (‘the LRA’) requires the employer to
show that the reason for dismissal is a fair reason related to the employee’s
conduct or capacity or based on the employer’s operational requirements.
These separate categories seem at first glance to be easy to apply but in
practice are often highly ambiguous. Is incompatibility a form of misconduct,
or incapacity, or can the employer argue that for operational reasons the
incompatible employee must be dismissed? Is gross negligence misconduct
or incapacity? Is intoxication of an alcoholic employee misconduct or
incapacity? And so the examples go on.
The difficulty has been recognised by the courts.Thus in SABC v CCMA &
Others ([2006] 6 BLLR 587 (LC) in par 22), Pretorius AJ commented as
follows:
‘The notional line between the various circumstances that could give rise to a fair dismissal
(misconduct, poor performance, incapacity and operational requirements) is not always easy to
draw. Often the same conduct may give rise to more than one appropriate categorisation.
Employers may often, not unreasonably, err in their attempts to categorise the circumstances
giving rise to a potential dismissal. The failure to correctly categorise should not however
detract from the appropriate inquiry in each case, namely, to assess first, whether there was a
substantively fair reason for dismissal and second, whether an appropriate and fair procedure
was followed by the employer.’
This case note, looking at the recent Labour Court decision in Zililo v
Maletswai Municipality & Others ([2009] JOL 23238 (LC)), seeks to
understand the limits of blurring the lines between incapacity, misconduct and
operational requirements, and the consequences for the parties involved. It
needs to be said at the outset that the outcome of the case (the arbitration
award was set aside) might well be justified on other grounds, specifically a
lack of evidence to substantiate some of the charges. I therefore do not
suggest that the case was wrongly decided, but I confine myself to that part of
the judgment that deals with a blurring of concepts in disciplinary charges.
2 The Facts of the Case
The employee was employed by the municipality as a technical service
manager for a fixed-term contract of five years. The municipality dismissed
426
(2009) 21 SA Merc LJ 426
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