Africa’s largest mobile network, MTN, has lost a Labour Court bid to appeal a ruling after the court rejected an argument wrongly based on case law because they can’t − by any “stretch of the imagination” − be compared.
The leave to appeal application relates to a November 2025 decision in which the court partially set aside an earlier arbitration award in favour of former employee Neo Thlame, reducing his back pay to six months.
MTN sought leave to appeal that ruling, arguing the employee’s lack of remorse over his misconduct – absenteeism and defying a manager’s instruction to report for duty – warranted dismissal rather than reinstatement.
The mobile operator argues that reinstating an employee already on a final written warning sends the wrong message, suggesting repeat misconduct will still be tolerated. Labour Court judge Tapiwa Gandidze says this is not a recognised legal principle in the leave to appeal judgement and, in any event, the court could not create one.
“The submission that it is ‘trite that an employer cannot be expected to reinstate an employee who is not remorseful’ was not supported by case authorities establishing such a principle,” the ruling states.
Diamonds in the dust
MTN’s reliance on a previous case involving mining company De Beers was rejected. The De Beers case dealt with employees charged with fraud, and MTN itself acknowledged the ruling found only that a lack of remorse makes reinstatement difficult, not impossible.
“In De Beers, the employees were charged with fraud, which was considered serious. The misconduct committed by Thlame cannot, by any stretch of the imagination, be compared to what the employees in De Beers were charged with,” the ruling states.
Gandidze adds that a lack of remorse does not “outweigh all other factors” and whether it justifies dismissal depends on the specific facts of each case.
“Thlame’s lack of remorse, together with the gravity of the misconduct, the fact that he defied a manager’s instruction, and the previous warnings were all factors considered in reducing his backpay to six months,” the ruling states.
Exaggerated consequence
The judge also rejected MTN’s claim that reinstating an employee who shows no remorse undermines its Constitutional right to fair labour practices, calling it an exaggeration of the issue.
“The case does not raise a Constitutional issue. It is not in every case where an employee shows no remorse that the misconduct should be met with a sanction of dismissal,” Gandidze writes.
The operator, South Africa’s second largest, says: “We are in the process of seeking legal guidance and are considering our next steps. We cannot comment any further at this juncture.”
MTN’s most recently available labour position statement says it “is committed to responsible labour practices across multiple footprints”. It adds that its approach is consistent with internationally recognised principles.
ITWeb could only locate one vague “Neo Thlame” profile on LinkedIn, without a photograph, listing their position as a full-time sales representative with no additional information. The judgement does not indicate how long Thlame had been employed by MTN, nor a detailed timeline of the case.
Gandidze says there is no prospect that the Labour Appeal Court will reach a different conclusion from the finding that the dismissal was too harsh. The ruling also notes there is no reasonable prospect of another court reaching a different conclusion.
“Thlame’s lack of remorse is not a decisive factor in determining the sanction. Thlame’s back pay was reduced so that he did not get off scot-free. Leave to appeal on this ground is refused,” the judge notes.
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