The Labour Court’s recent judgment in Transnet SOC Ltd (Transnet Engineering) v NTM obo Molope and Another ([2025] ZALCJHB 494) offers a particularly useful reaffirmation of two core employer prerogatives, being the right to regulate internal communication systems, and the right to impose discipline even where an employee claims to be acting in a representative capacity either as a trade union representative or co-worker.
Most importantly for employers, the Court set aside an arbitration award in which the Commissioner (the presiding officer in CCMA and Bargaining Council matters)had reinstated two dismissed employees and awarded 18 months’ backpay. The Court took a firm view that the Commissioner misconstrued the true nature of the misconduct, ignored key uncontested evidence, and failed to apply the correct review test. The result is a judgment that significantly strengthens an employer’s ability to manage inappropriate workplace communications, enforce internal policies, and to insist on the proper use of grievance processes.
What follows is a breakdown of the key findings, together with employer-tailored advice to assist organisations in managing similar risks.
Factual background
The relevant employees were dismissed for a wide range of misconduct, including abuse of the employer’s email system, insubordination, intimidation, defamation and misrepresentation. They sent emails to senior executives to whom they did not report using language the employer’s witnesses described as threatening, undermining and defamatory.
Crucially, both employees failed to attend their disciplinary hearings, relying on medical certificates, and the hearings proceeded in absentia. When the dismissal dispute reached the Bargaining Council, the Commissioner found both dismissals to be procedurally and substantively unfair and ordered retrospective reinstatement.
The employer took the Bargaining Council’s decision on review to the Labour Court. The Labour Court upheld the review and replaced the arbitration award with a finding that the dismissals were both substantively and procedurally fair.
The Labour Court’s findings
Misconstruing the true nature of the dispute
The Court held that the Commissioner focused disproportionately on why the emails were sent (i.e., the employees’ belief that they were raising legitimate concerns), instead of interrogating the content, tone and impact of them on the recipients. This was a fundamental error: the recipients testified, without contradiction, that the emails were threatening, intimidating and defamatory.
The Commissioner also failed to appreciate that internal grievance processes existed, were well-understood, and were deliberately bypassed. Employees may not ignore grievance procedures, bypass reporting lines and send combative communications directly to senior executives.
Once the Commissioner failed to engage with the real misconduct, she diverted from the correct path of the enquiry, triggering a reviewable irregularity.
Incorrect focus on union recognition
The Commissioner repeatedly returned to the employer’s non-recognition of the union, the National Transport Movement (NTM), and treated this as a central issue. The Labour Court found this to be legally irrelevant for the following reasons: (a) Union membership is a right, but non-recognition does not entitle employees to use company systems to conduct union business outside policy constraints; (b) the employer’s email policy remained binding irrespective of whether the union was recognised; and (c) the Commissioner incorrectly treated the matter as a “fairness of instruction” case, when the employees had not been charged for refusing an instruction. They were charged based on what they wrote, and how they wrote it.
Failure to evaluate undisputed evidence
The Court held that it was decisive and undisputed that the password-protected email account of one of the litigant employees (the fourth respondent) was used to send intentionally misdirected, grievance-bypassing messages to non-supervisory managers, the content of which caused genuine distress and was plainly misconduct.
A Commissioner is required to evaluate material evidence “in the round”. The Court held that the Commissioner did not do so.
Procedural fairness: medical certificates and postponement
The Commissioner found procedural unfairness because (a) the employees said the charges were vague, and (b) the chairperson allegedly did not consider their medical certificates.
The Labour Court rejected this argument because the employees had not attended the inquiry to raise any vagueness objection, the matter had already been postponed several times, and the employees had themselves indicated that they wished to be dismissed in absentia while pursuing urgent court relief.
A Commissioner may not rewrite what the chairperson “ought” to have done but must assess what the chairperson actually did on the information available at the time. The Commissioner’s approach was unreasonable.
The review test applied
The Court carefully restated the settled review standard (as formulated in Sidumo) and concluded that the Commissioner misconceived the enquiry, ignored relevant evidence, relied on irrelevant considerations, and reached a result no reasonable arbitrator could reach on the evidence before her.
Key takeaways for employers
Enforce internal communication policies consistently
This judgment confirms that employers may legitimately restrict the use of internal email systems, including prohibiting union-related communication via company email if internal policies so provide. Employers should ensure that their Acceptable Use / Electronic Communication Policies are clear and consistently enforced, that all employees are trained on the policy, and that deviations, particularly those involving aggressive or defamatory content, are managed promptly and decisively.
Union communication does not override policy or reporting lines
Employees who act “on behalf of” co-workers or a union do not enjoy immunity from discipline. A representative function does not authorise bypassing reporting structures, permit disrespectful or threatening communication, or override a legitimate workplace rule. This is particularly important for employers facing emerging or unrecognised unions.
Grievances must follow the grievance procedure
Where an organisation has a functioning grievance process, employees may not unilaterally elect an alternative dispute-escalation mechanism. Employers are entitled to insist that grievances be handled through the correct channels.
This judgment supports employers taking firm action where employees intentionally bypass the grievance system and engage in confrontational conduct instead.
Medical certificates do not automatically justify postponements
A chairperson may legitimately proceed with a hearing in absentia even where a medical certificate has been submitted, provided prior postponements have already occurred, attendance is practically possible despite the certificate, the context suggests tactical delay, or the employee fails to provide sufficient detail.
Employers should ensure that the record reflects all considerations that informed the chairperson’s decision, as this becomes vital on review.
Commissioners may not elevate irrelevant considerations
The Labour Court was plainly critical of the Commissioner’s focus on union recognition issues. This case illustrates that arbitrators must decide the case actually before them, that they may not recast the dispute into one involving union rights if the charge sheet relates to misconduct, and that employers need not tolerate misconduct merely because it is wrapped in the language of “raising concerns”.
Conclusion
The judgment is a strong affirmation that, while employees have every right to join and participate in trade unions, they remain required to comply with employer policies, reporting lines and basic standards of civility. The Labour Court was unequivocal: employees cannot bypass internal processes, send inflammatory or insubordinate communications to senior leaders, and later justify this conduct by invoking representation rights.
For employers struggling with boundary-testing behaviour, particularly in unionised or partially unionised environments, this judgment provides a clear jurisprudential foundation for firm, fair and policy-aligned disciplinary action.