Ndiviwe Dukiso v King Sabata Dalindyebo Local Municipality (K.S.D) and Others

The applicant was employed by the first respondent (King Sabata Dalindyebo Local Municipality) as a law enforcement officer since September 2005 under a written contract of employment. In November 2018, he was transferred from Mqanduli municipal offices to Mthatha to work in the law enforcement by-law section. On his salary payment date in February 2022, the applicant was not paid his salary. When he enquired at the salary section and human resources department, he was informed that his salary had been terminated at the instance of the third respondent (his director), but no reason was recorded for the termination. The respondents alleged that the applicant had been absent from work without authorization for more than 14 days in February 2022, triggering clause 22(h) of his employment contract which provided for automatic termination upon unauthorized absence exceeding 14 days. The applicant denied being absent and stated he was at work, as evidenced by a shift allowance payment on his payslip. He approached the court on an urgent basis seeking reinstatement of his salary.

• Whether the respondents were entitled to terminate the applicant's salary without prior notice or hearing
• Whether clause 22(h) of the employment contract operated to automatically terminate the contract upon unauthorized absence exceeding 14 days without any procedural requirements
• Whether the respondents were required to comply with notice requirements and disciplinary procedures before terminating the applicant's salary
• Whether there was a material dispute of fact regarding the applicant's alleged absence from work
• Whether the alternative defence of treating absence as leave without pay under clause 30 of the contract was properly invoked

1. The respondents are hereby ordered to reinstate the applicant's salary retrospectively, from February 2022. 2. The respondents are hereby ordered to pay costs of this application.

Employment contracts containing provisions for automatic termination (such as termination upon unauthorized absence exceeding a specified period) must be interpreted in the context of the entire contract and incorporated policies and procedures. Where an employment contract incorporates disciplinary codes, policies, and procedures, these must be complied with before terminating an employee's salary or contract, even where the contract contains provisions that appear to operate automatically. An employer cannot terminate an employee's salary or treat absence as leave without pay without first: (1) giving notice to the employee of the intended action; (2) affording the employee an opportunity to explain the absence; and (3) properly calculating and accounting for the alleged unauthorized absence. The principle that there is no legal dispensation that permits punishment without a hearing applies to termination of employment contracts and salary payments. Procedural fairness requirements, including notice and an opportunity to be heard, are implicit in employment contracts even where not expressly stated, particularly where the contract incorporates policies and collective agreements that provide for such procedures.

The court observed that it was not necessary to definitively determine whether the shift allowance payment on the applicant's payslip was calculated based on actual hours worked or was a standard predetermined amount based on the nature of his duties, though the court noted the figure suggested it was the latter. The court commented that even if the first respondent was ultimately entitled to a deduction equivalent to the days the applicant was absent after due process, the first respondent would still be able to make such deduction from the applicant's future emoluments or other monies due to him. The court noted that the applicant's failure to address certain issues in his initial papers did not exonerate the respondents from their procedural obligations, as the applicant had not been properly advised of the grounds for the termination before filing his application. The court distinguished the cases of Phenithi v Minister of Education and Masinga v Chief of SANDF on the basis that those cases concerned statutory jurisdictional requirements in the context of statutes, whereas the present case concerned interpretation of a contract read with internal municipal policies.

This case is significant in South African labour law as it clarifies that automatic termination clauses in employment contracts (such as termination for unauthorized absence) cannot operate without adherence to procedural fairness requirements. The judgment reinforces the principle that employment contracts must be interpreted holistically with reference to applicable policies, collective agreements, and disciplinary procedures incorporated by reference. It emphasizes that even where contractual provisions appear to provide for automatic consequences, employers must still comply with notice requirements and afford employees an opportunity to be heard before taking adverse employment actions such as terminating salaries. The case demonstrates the court's commitment to procedural fairness in the employment context and the principle that employees cannot be punished without a hearing. It is particularly relevant to local government employment relationships governed by collective bargaining agreements.