The first major development involves a dispute between MTN, Africa’s largest mobile network, and a former employee, Neo Thlame. MTN sought leave to appeal a November 2025 Labour Court decision that had partially set aside an arbitration award in Thlame’s favour, reducing his back pay to six months. The mobile operator argued that Thlame’s lack of remorse over his misconduct—specifically absenteeism and defying a manager’s instruction to report for duty—warranted dismissal rather than reinstatement. MTN contended that reinstating an employee who had already received a final written warning would send the wrong message, implying that repeat misconduct would be tolerated.
Labour Court judge Tapiwa Gandidze rejected this argument, stating that the submission that an employer cannot be expected to reinstate an unremorseful employee was not supported by case authorities establishing such a principle. The court specifically dismissed MTN’s reliance on a previous case involving De Beers, noting that the De Beers case dealt with employees charged with fraud, a level of seriousness that “cannot, by any stretch of the imagination, be compared” to Thlame’s conduct. Gandidze ruled that a lack of remorse does not outweigh all other factors; instead, the appropriateness of dismissal depends on the specific facts of each case, including the gravity of the misconduct and prior warnings. The judge also rejected MTN’s claim that reinstatement undermined its constitutional right to fair labour practices, deeming the issue an exaggeration. The ruling explicitly noted that there is no reasonable prospect of the Labour Appeal Court reaching a different conclusion, effectively closing the door on further legal challenges for MTN in this matter.
Simultaneously, the Labour Appeal Court addressed a separate but procedurally significant issue regarding the application of collective agreements to individual employment contracts. The court dismissed a claim by a former Commission for Conciliation, Mediation and Arbitration (CCMA) commissioner, identified as SN, for R176,174.32 in salary arrears. SN had argued that upon transitioning from a part-time to a full-time commissioner, he was entitled to remuneration at the P6 salary level. His primary argument was that a tacit term in his contract guaranteed his earnings would not fall below his previous part-time salary. Failing that, he relied on the CCMA’s Wage and Substantive Agreement (WSA), concluded with the Commission Staff Association in January 2018, to claim the 80th percentile of the P6 level.
The Labour Appeal Court found that the Labour Court had erroneously treated the WSA as the contractual basis for SN’s remuneration claim. The higher court determined that the collective agreement did not automatically form part of SN’s individual employment contract. Consequently, the ruling set aside the previous order requiring the CCMA to pay the arrears. This decision underscores the legal distinction between individual contractual terms and the automatic incorporation of collective bargaining agreements into personal employment contracts, a nuance that remains critical for public sector employees in South Africa.
These rulings collectively signal a judicial preference for nuanced, fact-specific analysis in South African employment law. While the MTN case highlights that remorse is a factor but not a definitive determinant in dismissal decisions, the SN case reinforces the limits of collective agreements in individual salary disputes. For employers, the MTN judgment suggests that while a lack of remorse is relevant, it must be weighed against the overall context of the misconduct. For employees and unions, the SN decision serves as a reminder that collective agreements do not invariably override individual contractual arrangements unless explicitly incorporated. Both cases remain closed on the specific issues litigated, with the courts confirming that no further appeals are likely to succeed on the current legal reasoning.
