Persistent late-coming in the workplace may appear to be a minor issue when individual incidents are viewed in isolation. However, repeated lateness can disrupt staffing, affect customer service and productivity, place additional pressure on other employees and interfere directly with an employer’s operations. The recent Labour Court judgment in Cape Thai Restaurant (Pty) Ltd t/a Simply Asia Durbanville v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (C06/2025) [2025] ZALCCT 130 (9 December 2025) provides a useful reminder that persistent late-coming may constitute misconduct, but that dismissal cannot be justified by lateness alone without considering the evidence, the circumstances of the employee and the cumulative effect and seriousness of the misconduct.

What happened in Cape Thai Restaurant?

The employee was employed as a Junior Manager from 21 June 2021 until his dismissal on 20 November 2023. He faced three charges of misconduct, namely, arriving late for work on numerous occasions, including on 16 October 2023, 19 October 2023 and 20 October 2023; gross negligence in the performance of his duties and management of the store and staff, which allegedly resulted in numerous customer complaints; and gross disrespect arising from his conduct during a telephone call with a superior concerning operational issues. The employee pleaded guilty to the late-coming charge but pleaded not guilty to the remaining charges. The chairperson found him guilty and recommended that his employment be terminated. The employee subsequently referred an unfair dismissal dispute to the CCMA. The commissioner found the dismissal substantively unfair and awarded compensation equivalent to four months’ remuneration. The employer took the arbitration award on review to the Labour Court. In a judgment delivered on 9 December 2025, the Labour Court reviewed and set aside the arbitration award and substituted it with a finding that the dismissal was substantively fair.

Late-coming Does Not Automatically Justify Dismissal

An important point arising from Cape Thai Restaurant is that the judgment should not be understood as establishing that repeated late-coming, by itself, automatically warrants dismissal. The employee had been found guilty of three separate charges. In upholding the dismissal, the Labour Court considered the cumulative effect of the misconduct, including the employee’s position as a Junior Manager, the management-related misconduct, the customer complaints, the disrespect charge, his lack of remorse and the impact of the misconduct on the employer. The Court specifically found that the cumulative effect of the findings of guilt made dismissal reasonable in the circumstances. The case is therefore better understood as an illustration of the importance of assessing misconduct and sanction in context, rather than as a rule that persistent lateness necessarily warrants dismissal.

The Importance of Reliable Attendance Evidence

The case also highlights the importance of reliable evidence when dealing with alleged late-coming. The employee’s late-coming allegations included specific dates. The CCMA commissioner questioned the reliability of the employer’s biometric attendance records, including the possibility that the records could be manipulated. The Labour Court ultimately disagreed with the arbitrator’s assessment of the evidence. Employers dealing with persistent late-coming should therefore ensure that attendance records, clock-in systems, rosters and other relevant records are accurate and capable of establishing the alleged pattern. A general allegation that an employee is “always late” is unlikely to be sufficient, without reliable evidence establishing the frequency, duration and circumstances of the alleged misconduct.

When Can Persistent Late-Coming Constitute Misconduct?

Late-coming may constitute misconduct where an employee fails to comply with a valid and reasonable workplace rule or standard regulating working hours. The enquiry should nevertheless be conducted on the facts of the particular case. Relevant considerations may include:

  • whether the required working hours were clearly communicated;
  • whether the rule or standard was valid and reasonable;
  • whether the employee knew, or could reasonably have been expected to know, what was required;
  • the frequency and duration of the lateness;
  • whether the employee provided an explanation and, where appropriate, supporting evidence;
  • whether the employee notified the employer or relevant supervisor that they would be late;
  • whether previous corrective or disciplinary measures had been implemented;
  • whether the rule has been applied consistently; and
  • the actual or potential harm caused to the employer.

The employee’s role may also be relevant. Late-coming by an employee responsible for opening a business, supervising staff or ensuring that operations commence on time may have materially different consequences from an isolated instance of lateness by an employee whose absence does not significantly disrupt operations.

Conclusion: Practical Guidance for Employers

Employers should address persistent late-coming before it becomes a dismissal issue.

  • Establish the rule clearly – Working hours and attendance requirements should be clearly communicated to employees. Where appropriate, disciplinary rules should identify late-coming as misconduct and explain the applicable standards.
  • Keep reliable records – Employers should maintain accurate attendance records, clock-in and clock-out records, rosters and other documentation that can establish the timing and frequency of late-coming.
  • Give the employee an opportunity to explain – Employees should be given a reasonable opportunity to explain repeated lateness. Where an explanation relies on circumstances that can reasonably be substantiated, supporting evidence may be requested.
  • Apply discipline consistently – Employers should consider how similar misconduct has been dealt with in comparable cases and should apply disciplinary rules consistently, while recognising that each case must ultimately be assessed on its own circumstances.
  • Consider the impact of the misconduct – The employer should be able to demonstrate the actual or potential consequences of persistent lateness. In a customer-facing business, for example, the late arrival of a manager responsible for opening a store or supervising staff may have significant operational consequences.
  • Consider whether dismissal is proportionate – Before dismissal is imposed, the employer should consider whether the misconduct is sufficiently serious, whether previous corrective measures have failed, whether the employee has shown remorse or a willingness to comply, and whether dismissal is an appropriate sanction in the circumstances.