A Bridge too Far: When disciplinary shortcuts become a breach of contract

By Ali Sonday | Senior Associate, Paula Phukuje | Associate and Amanda Kubheka | Candidate Attorney

The Labour Court in Durban recently addressed the boundaries of an employer’s power to expedite disciplinary proceedings at the expense of contractual obligations. The case of Mpembe v University of Zululand  serves as a reminder that while ‘finality is a good thing, justice is better.’

Importantly, the Court approached the matter not through the usual labour-law lens of fairness, but squarely as a contractual dispute falling within the Labour Court’s jurisdiction under section 77(3) of the Basic Conditions of Employment Act.

The Applicant, Ms Siphesihle Mpembe, Director of Supply Chain Management at the University of Zululand, faced serious misconduct allegations following a forensic investigation. The disciplinary process, which began in early December 2025, quickly became contentious. After several refused requests for postponements and a failed recusal application against the Chairperson, the proceedings took an unconventional turn. Frustrated by what he perceived as delaying tactics, the Chairperson (Third Respondent) issued a ruling on 11 December 2025 as follows:

• The University was required to submit all evidence in writing by midnight.
• The Applicant was given 24 hours to provide written responses and evidence.

Therefore, the right to call and cross-examine witnesses was effectively abolished.

Labour Relations Act vs. Contract Law

The Chairperson justified this shift by citing Avril Elizabeth Home for the Mentally Handicapped v CCMA, arguing that disciplinary hearings should be less legalistic and more informal than court proceedings. However, Acting Judge Kroon identified a critical distinction. Under the Labour Relations Act (LRA), employers are generally only required to follow an informal audi alteram partem process. The Court emphasised that this matter did not concern the minimum procedural fairness required by the LRA, but rather the enforceability of agreed contractual rights. Once a disciplinary code is expressly incorporated into a contract of employment, it acquires binding contractual force and must be complied with strictly. The Applicant’s contract of employment expressly incorporated the University’s Disciplinary Code. This Code specifically guaranteed the right to lead evidence, call witnesses, and the right to cross-examine.

The Court held that while the LRA does not require mini-courtrooms, employers are bound by the standards they have agreed to in a contract. An employer cannot unilaterally disregard rights in their own code simply because they want a matter finalised quickly. The Court found that the Applicant met the requirements for a final interdict. Importantly, the Court rejected the idea that she could simply go to the CCMA later. The CCMA deals with fairness under the LRA, but it cannot award contractual damages or enforce specific performance for unlawful breaches of contract in the same way a court can.

For employers, the primary takeaway is that speed cannot come at the expense of specific contractual provisions. Many employers mistakenly believe that because the LRA and cases like Avril Elizabeth Home promote informal proceedings, they can unilaterally simplify proceedings to save time. This judgment clarifies that if you have a written Disciplinary Code incorporated into your contracts, that code should be adhered to. By bypassing the right to cross-examination, the University repudiated the employment contract. The Court made it clear that repudiation does not require bad faith. Even well-intentioned attempts to streamline or expedite proceedings may amount to repudiation where they involve the wholesale disregard of core contractual rights. In legal terms, this means they acted in a way that showed they no longer intended to be bound by the agreement.

For employees, especially those in senior roles, this case is a victory for procedural justice. While the LRA provides a safety net of fairness, a contract provides a guarantee of lawfulness. The judgment confirms that employees do not always have to wait until they are dismissed to seek help. If an employer is currently violating a contractual right during an ongoing process, the Labour Court has the jurisdiction to step in and stop the breach immediately. This intervention is not based on the “exceptional circumstances” test applicable to incomplete disciplinary hearings under the Wahlhaus principle, but rather on ordinary principles governing final interdicts in contract law.

Concluding Remarks

Ultimately, the Court ruled in favour of the Applicant on the procedural front but declined to remove the Chairperson. The Mpembe judgment highlights a fundamental tension between an employer’s desire for administrative efficiency and an employee’s right to contractual certainty.

Before Employers and/or Chairpersons decide to conduct disciplinary hearings on paper, they must ensure that this is permitted by the employees’ contract of employment and/or the Employers Disciplinary Procedure. If a formal physical disciplinary is required in terms of the Employees contract of employment or in terms of a Disciplinary Procedure incorporated in the contract of employment, in that case the Employer can only conduct the disciplinary hearing on paper if the employee consents thereto.

Where an Employer unilaterally decides to conduct a disciplinary enquiry on paper where this is not specifically permitted in the employee’s contract of employment, this would lead to a paper hearing being declared procedurally unfair or even expose the Employer to costly litigation in the form of an urgent application for interdictory relief or even contractual damages.