A City of Cape Town employee who was dismissed for allegedly asking a resident for a tip in exchange for removing rubbish has won his job back after the Labour Court dismissed the municipality’s bid to overturn his reinstatement.
The court upheld the reinstatement of Shahied Ebrahim, finding that his dismissal was substantively unfair and that the City had failed to demonstrate that his continued employment would be intolerable.
Acting Judge MJ Motshekga dismissed the City’s review application, ruling that the arbitration award reinstating Ebrahim, with a final written warning, was reasonable and supported by the evidence.
Ebrahim, who worked in the City’s Urban Waste Management directorate as a senior operational supervisor: driver, had 34 years of uninterrupted service and an unblemished disciplinary record when he was dismissed.
The dispute arose from an incident on May 16, 2023, when Ebrahim was on duty in the Lakeside area with a colleague, Mogamet Yaheet Warner.
A resident, David Van der Walt, alleged that Ebrahim approached him and asked for a tip in exchange for removing two bags of rubbish outside his property.
Van der Walt reported the incident on a community platform and to his ward councillor, providing a photograph of the municipal vehicle timestamped at 7.41am.
Ebrahim denied soliciting money, maintaining that he and Warner had stopped to eat food they had purchased earlier that morning. Warner supported his version.
The City charged Ebrahim with misconduct, alleging that he had misused a municipal vehicle for private purposes to solicit money from residents.
Commissioner found tip solicitation proved
During arbitration, Commissioner Orlando Moses separated the allegation into two issues: misuse of the municipal vehicle and soliciting a tip.
He found that the misuse of the vehicle had not been established because it had been lawfully issued to Ebrahim, had not deviated from its permitted route and was not used to transport unauthorised passengers.
However, the commissioner found that Ebrahim had solicited a tip from Van der Walt, preferring the resident’s evidence over the employee’s denial.
Despite this, Moses concluded that dismissal was too harsh for a first offence, considering Ebrahim’s lengthy service and clean disciplinary record.
He ordered Ebrahim’s reinstatement from April 1, 2024, limited back pay to three months’ remuneration and directed that he receives a final written warning valid for 12 months.
Court rejects City’s zero-tolerance argument
The City argued that the commissioner had failed to appreciate the seriousness of soliciting money from members of the public, which it regarded as inherently dishonest and unlawful.
It also argued that its zero-tolerance approach justified dismissal and that the misconduct had destroyed the trust relationship, making reinstatement inappropriate.
The court rejected these arguments, finding that the commissioner had reasonably concluded that soliciting a tip did not necessarily constitute inherent dishonesty.
Judge Motshekga noted that the City’s internal instruction prohibited employees from requesting or soliciting rewards, gifts, favours or hospitality in their capacity as municipal employees.
However, the court said the breach of the instruction constituted misconduct, rather than automatically establishing inherent dishonesty.
The City’s reliance on the Prevention and Combating of Corrupt Activities Act was also rejected because the argument had been raised for the first time in its heads of argument and had not been put to Ebrahim during arbitration.
The court further found that a zero-tolerance policy could not automatically determine the appropriate sanction, emphasising that dismissal must be justified by the circumstances of each case.
Employer failed to prove breakdown of trust
The court also dismissed the City’s argument that the trust relationship had broken down.
It found that the City had failed to provide objective evidence demonstrating that continued employment would be intolerable.
The evidence of its senior superintendent, Ernest Pharo, who testified that the City could no longer trust Ebrahim to operate a municipal vehicle, was insufficient.
Judge Motshekga said an employer’s assertion that trust had been destroyed could not, on its own, justify denying reinstatement.
The court stressed that reinstatement remains the primary remedy for substantively unfair dismissal and that the employer bears the burden of proving that continued employment would be intolerable.
It concluded that the commissioner’s decision to reinstate Ebrahim on terms considered just and equitable could not be faulted.
The court dismissed the City’s review application and made no order as to costs.
