Mmatlou Maria Moloantoa v CCMA and Others

Moloantoa was employed by Eskom SOC Ltd as an Assistant Officer Documentation from 1 November 2013. In February 2016, she travelled from Medupi Power Plant to Midrand for a training course as a passenger in a co-worker's private vehicle, paying the co-worker R400. She submitted a travel claim for R2 584.80 based on 713 kilometers inputted on Eskom's electronic system. The claim was approved and paid. In September 2017, Eskom received an anonymous tip about fraudulent travel claims and appointed a forensic investigator. Moloantoa did not come clean despite Eskom offering amnesty. On 22 February 2018, she was charged with making false statements in that she travelled as a passenger but claimed as if she operated a vehicle, resulting in her receiving R2 584.80. Mr TD Zulu, as chairperson of the disciplinary hearing, found her guilty and imposed suspension without pay for seven working days, which she served. Two weeks after her return to work on 9 May 2018, the General Manager Mr Rudi Van Der Wal called upon her to make representations as to why she should not be dismissed. Despite NUMSA's objections, on 17 May 2018 Van Der Wal changed the sanction to summary dismissal. Moloantoa referred an unfair dismissal dispute to the CCMA. Commissioner Manganyi found the dismissal substantively and procedurally fair. Moloantoa sought to review this award.

• Whether an employer can legally revoke an earlier decision to impose a lesser sanction and substitute it with dismissal
• Whether such substitution of sanction without express authorization in the disciplinary code renders the dismissal procedurally unfair, invalid, and/or substantively unfair
• Whether the employer must be given an opportunity to prove the fairness and appropriateness of dismissal despite acting ultra vires the disciplinary code
• Whether the doctrine of election applies to prevent an employer from changing an imposed sanction
• What the appropriate remedy is where dismissal is substantively unfair but reinstatement is inappropriate due to the circumstances surrounding the dismissal

1. The late filing of the review application was condoned. 2. The award issued by Commissioner Manganyi dated 5 December 2018 under case number LP5082-18 was reviewed and set aside. 3. It was replaced with an order that the dismissal of Maria Mmatlou Moloantoa was substantively unfair. 4. Eskom SOC Ltd was ordered to pay Maria Mmatlou Moloantoa compensation in the amount of R225 000.00, being an equivalent of ten months' salary at the rate of R22 500.00 per month. 5. There was no order as to costs.

Where an employer substitutes a sanction imposed by a disciplinary chairperson without express authorization in the disciplinary code or collective agreement to do so, such substitution is ultra vires and renders the dismissal invalid and substantively unfair, without the need to consider whether the dismissal was for a fair reason or whether the sanction was appropriate. The Labour Court is bound by LAC authority even where the judge has reservations about its consistency with Constitutional Court precedent. Where a dismissal is substantively unfair but the circumstances surrounding the dismissal (particularly involving dishonesty and lack of remorse) make continued employment intolerable, compensation rather than reinstatement is the appropriate remedy. Compensation under the LRA constitutes solatium for impairment of dignity and humiliation, not damages for patrimonial loss.

Moshoana J expressed significant reservations about the current legal position established in SARS v CCMA (Kruger). The judge stated that in his view: (1) Section 188 of the LRA provides that dismissal for misconduct is for a fair reason; (2) Section 34 of the Constitution requires disputes to be resolved by application of law and entitles employers to prove fairness and appropriateness of dismissal; (3) The LRA does not recognize 'invalid dismissals' only unfair and automatically unfair dismissals (per Steenkamp v Edcon); (4) Where misconduct involves dishonesty, continuation of the employment relationship is intolerable and commissioners should not interfere with the employer's sanction; (5) Depriving an employer of the opportunity to prove fairness of dismissal is at odds with section 34 of the Constitution; (6) Even where substitution of sanction contravenes a disciplinary code, employers should be entitled to prove the sanction was appropriate; (7) The doctrine of election should not apply in the 'kingdom of fairness' to bind employers to inappropriate sanctions imposed by employees unfamiliar with disciplinary procedures; (8) If not bound by SARS v CCMA (Kruger), the judge would have found the dismissal substantively fair. The judge also doubted whether the presence of a collective agreement versus a disciplinary code is determinative, noting that what matters is whether those instruments empower the employer to substitute sanctions. The judge expressed disagreement with aspects of NUM obo Members v ArcelorMittal and Beyers v Anglo American Platinum regarding the doctrine of election.

This case illustrates the tension in South African labour law between different authorities on whether an employer can substitute a sanction imposed by a disciplinary chairperson. The judgment highlights the conflict between SARS v CCMA (Kruger) LAC authority (which holds such substitution without authorization is invalid and substantively unfair) and the Constitutional Court's rejection of the concept of invalid dismissals in Steenkamp v Edcon. The case demonstrates the binding effect of LAC decisions on the Labour Court despite judicial reservations about their correctness. It also addresses the principles governing compensation as solatium for dignity impairment rather than patrimonial loss, and confirms that even where dismissal is substantively unfair, reinstatement may be denied based on section 193(2) factors, particularly where misconduct involves dishonesty. The judgment reveals ongoing jurisprudential uncertainty about the interplay between procedural irregularities in internal disciplinary processes and substantive fairness of dismissal.