THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case No: C383/2023
In the matter between:
WESLEY NEUMANN Applicant
and
WESTERN CAPE EDUCATION DEPARTMENT First Respondent
EDUCATION LABOUR RELATIONS COUNCIL Second Respondent
JONATHAN GRUSS N.O. Third Respondent
PREMIER OF WESTERN CAPE Fourth Respondent
HELEN ZILLE Fifth Respondent
BRIAN SCHREUDER Sixth Respondent
PUBLIC SERVICE COMMISSION Seventh Respondent
DEPARTMENT OF PUBLIC SERVICE
AND ADMINISTRATION Eighth Respondent
2
Heard: 17 and 19 September 2025
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email, publication on the Labour Court website and release to
SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 5
January 2026.
Review — dismissal — principal charged with multiple counts of misconduct
arising from COVID -19 operational disputes — arbitrator’s findings reviewed and
set aside.
Misconduct — insolence — single instance of intemperate language in
correspondence — not gross insubordination — context of extraordinary stress
— selective discipline established — progressive discipline not considered —
dismissal disproportionate.
Sanction — dismissal outside the band of reasonable outcomes — final written
warning substituted.
Reinstatement — section 193(2) of the LRA — no evidence of intolerability or
impracticability — reinstatement to position of Principal ordered.
Back-pay — retrospective to date of dismissal — employer afforded opportunity
to apply for deductions in respect of alternative earnings.
Costs — law and fairness — no order as to costs.
______________________________________________________________________
JUDGMENT
DE KOCK, AJ
Introduction
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[1] This matter comes before the Labour Court as a review application in terms of
section 145 of the Labour Relations Act1 (“LRA”), seeking to review and set aside
the arbitration award issued by the third respondent (“the arbitrator”) under the
auspices of the second respondent (“ELRC”) on 19 June 2023. The applicant
raised various alleged irregularities as grounds of review, as will be set out
below.
Preliminary issues
Part A and absence of jurisdiction
[2] Before addressing the merits of the review application, it is necessary to address
some preliminary issues raised by the parties . The first issue relates to Part A of
the applicant’s notice of motion wherein the applicant is challenging the authority
of the sixth respondent (“Mr Schreuder”) to have instituted disciplinary action
against the applicant. This Court, however, is not required to consider Part A, as
the applicant has challenged this issue in the High Court and specifically advised
in the supplementary heads of argument that Part A does not need to be
considered by this Court. Part B deals with the review of the arbitration award,
which is the issue that this Court must address.
[3] The first respondent contends that, due to the applicant having filed an identical
review in the Western Cape High Court on 14 December 2023, this Court must
find that it lacks jurisdiction to entertain the review of the arbitration award. This
argument is rejected for obvious reasons. The applicant challenged his dismissal
by means of arbitration, and thereafter filed the current review application. The
dispute before this Court is whether the arbitration award i s reviewable. Part A
was correctly abandoned by the applicant, as this Court does not have
jurisdiction to consider the “lawfulness” of the applicant’s dismissal in terms of the
LRA.
1 Act 66 of 1995, as amended.
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[4] The first respondent ’s reliance on Ngubane v Safety & Security Sectoral
Bargaining Council2 (Ngubane) is misplaced. In Ngubane, the employee sought
to use a legality challenge to circumvent the statutory dispute resolution process
after having referred the matter to a bargaining council. Here, the applicant has
not sought to use this Court as an alternative forum for the legality question. Part
A has been expressly abandoned in these proceedings. This Court is seized only
with Part B, which is the application to review the arbitration award.
[5] It is immaterial and irrelevant to this Court that the applicant filed a review
application in the High Court, as the High Court will consider that application at
the appropriate time. No judgment has yet been issued by the High Court. The
mere existence of another review application on the ground of lawfulness does
not deprive this Court of the necessary jurisdiction to consider and rule on
whether the arbitration award is reviewable or not. The first respondent ’s reliance
on the doctrine of res judicata is not applicable to the review application before
this Court and neither is the “once and for all principle” relied on by the first
respondent.
[6] The applicant has the right to pursue a review application in terms of section 145
of the LRA following the arbitration award that was issued. The dismissal dispute
must be resolved through this Court in terms of section 145. The review
application before this Court cannot be held to be subject to a withdrawal of the
High Court review, as was contended on behalf of the first respondent. The
review of an arbitration award falls within the exclusive jurisdiction of the Labour
Court, and this Court must consider the application. The first respondent’s
challenge regarding this Court’s jurisdiction to determine the review application is
therefore rejected.
Condonation application
[7] The applicant contends that the first respondent’s answering affidavit was filed 7
[7] The applicant contends that the first respondent’s answering affidavit was filed 7
months late and that no application for condonation of the extreme late filing of
2 (2022) 43 ILJ 2543 (LC).
5
the answering affidavit was brought. The applicant contends that the answering
affidavit stands to be disregarded or struck and that the review application ought
to be dealt with on an unopposed basis. The first respondent, instead of filing an
answering affidavit, filed an interlocutory application requesting the Court to inter
alia set aside the applicant’s supplementary affidavit as an irregular step because
the applicant failed to refer to particular pages in the record.
[8] After considering the applicant ’s submissions regarding the late filing of the
answering affidavit, as well as the first respondent’s submissions in that regard,
this Court is of the view that it will be in the interests of justice for the late filing of
the answering affidavit to be condoned and to consider the review application
based on both parties’ pleadings and submissions. The applicant was afforded
the opportunity to file a replying affidavit and both parties filed extensive written
submissions. In fact, the arguments before this Court took place over two days.
There is no prejudice to the applicant if the late filing of the answering affidavit is
to be condoned other than the delay caused by the interlocutory application ,
which delay, given the protracted nature of this dispute, is not severe. The first
respondent further provided an explanation for not filing the answering affidavit. It
is immaterial whether the interlocutory application was good or bad in law. What
is important is that the first respondent took steps to seek the setting aside of the
supplementary affidavit before filing its answering affidavit.
[9] This Court therefore will consider both parties’ pleadings and submissions in
respect of the review application to ensure that both parties have been afforded
the right to be heard and to assist this Court to properly and comprehensively
consider the grounds of review relied on in support of the review application. The
consider the grounds of review relied on in support of the review application. The
applicant’s challenge to the late filing of the answering affidavit is therefore
rejected.
Arbitration award
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[10] The arbitration hearing took place over multiple days in February, April, and May
2023. On 19 June 2023, Commissioner Gruss (“the arbitrator”) issued his award,
finding that the applicant’s dismissal was both procedurally and substantively fair.
[11] The arbitrator found the applicant guilty on all five charges: (a) failure to carry out
lawful instructions (Charge 2); (b) disrespectful, abusive and insolent behaviour
(Charge 3); (c) bringing the WCED into disrepute (Charge 4); (d) inciting
personnel and learners to participate in a campaign to close schools (Charge 5);
and (e) breach of the WCED social media policy (Charge 6). Charge 1 was
overturned in the applicant’s favour during the appeal hearing and was not
pursued in the arbitration.
[12] In respect of Charge 2, the arbitrator found that the HOD ’s instruction of 24 July
2020 was not unlawful and not unreasonable and that the applicant failed to
comply with it. However, in a seemingly contradictory finding, the arbitrator also
stated: “I agree that the instruction for the applicant to provide Mr Schreuder with
copies of letters addressed to the parents and to the SGB by the close of
business on 24 July 2020 was unreasonable. ” The arbitrator nonetheless found
the applicant guilt y on the basis that the applicant subsequently did not provide
Mr Schreuder with such letters.
[13] In respect of Charge 3, the arbitrator found that the applicant ’s letter of 26 July
2020 was objectively insolent, stating that the reference to “ pre-1994 methods”
and “baasskap manner” had a racial undertone that makes what he wrote more
serious. The arbitrator found that it ultimately implies that Mr Schreuder is a racist
or that it demonstrates t he mentality of an apartheid racist boss. The arbitrator
characterised this as an act of gross insubordination and not only insolence.
[14] In respect of Charge 4, the arbitrator rejected the applicant ’s denial that he had
[14] In respect of Charge 4, the arbitrator rejected the applicant ’s denial that he had
sent the letter to media houses . The arbitrator found that he simply do es not
believe the applicant when he says he did not circulate the email , and asked why
one would insert “as an addressee to all media houses ” where you have no
intention to do so?
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[15] In respect of Charge 5, the arbitrator found that the applicant ’s social media
posts speak for themselves and that indicating that you are the principal of a
specific school as the person distributing posts , calling for the closure of schools,
amounts to an act of incitement.
[16] In respect of Charge 6, the arbitrator acknowledged that the applicant claimed to
be unaware of the social media policy and that Ms du Plessis confirmed that she
had never seen the policy. However, the arbitrator held that some rules are so
known that there is no need for them to be displayed or published.
[17] Regarding the applicant ’s claim of selective discipline, the arbitrator found that
there was “ not an iota of evidence” to support unfair targeting. The arbitrator
distinguished other principals who participated in the campaign on the basis that
they did not make themselves guilty of insubordination and did not display
disrespect in the manner the applicant did towards Mr Schreuder. This
distinction, however, relates only to Charge 3 (insolence). It does not explain why
only the applicant was charged with incitement (Charge 5) when other principals
engaged in identical conduct in the same campaign.
[18] On sanction, the arbitrator found dismissal to be appropriate, noting that the
applicant had rejected a demotion offer from the MEC, showed no remorse, and
that his post -dismissal Facebook statement indicated he would do it again if
faced with the same situation. Regarding the evidence of Ms du Plessis and Mr
Stander that they could still work with the applicant, the arbitrator held that this
does not lend itself automatically to a finding that the trust relationship had not
been breached irretrievably.
[19] The arbitrator rejected the applicant ’s reliance on Government Gazette 639 of 4
June 2020, finding that during the period in question June to August 2020 the
applicant was at work and never refused to attend his place of work . He also
applicant was at work and never refused to attend his place of work . He also
found that the instructions posed no imminent and serious risk of COVID -19
exposure.
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[20] The arbitrator found the dismissal to be both procedurally and substantively fair.
Grounds of review
[21] The applicant raised the following grounds of review:
21.1 Government Gazette 639 of 4 June 2020: The arbitrator failed to properly
consider and apply the protection afforded to employees by Government
Gazette No. 639 of 4 June 2020, which provides that no employee may be
dismissed, disciplined, prejudiced or harassed for refusing to perform work
where the employee reasonably believed the workplace posed an
imminent and serious risk of COVID -19 exposure. The applicant testified
that he reported for duty under protest and intended to refuse to perform
his work duties due to safety concerns. The arbitrator ’s finding that the
Gazette did not apply because the applicant was at work failed to consider
the full context of the applicant’s conduct.
21.2 Unlawfulness of instruction: The instruction issued by Mr Schreuder on 24
July 2020 was unlawful because it was issued in a regulatory vacuum.
The President announced on 23 July 2020 that schools would close, and
the first respondent ’s own circular of 24 July 2020 directed schools to
close at 13h00 that day. The new Government Gazette governing the
reopening of schools was only published on 2 August 2020. The arbitrator
erred in finding the instruction lawful when the legal framework authorising
it did not yet exist.
21.3 Unlawfulness of instruction to SGB: The third part of the instruction, which
required the applicant to inform the School Governing Body in writing that
their decisions fall outside of their functions of governance and oversight ,
was manifestly unlawful. A principal cannot unilaterally declare SGB
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decisions invalid. Only a Court may set aside SGB decisions under
section 22 of the South African Schools Act3 (Schools Act).
21.4 Alternative defence of compliance (Charge 2): There is no dispute that the
letter was issued to parents, that educators were at school teaching
learners every day, and that the SGB received a copy of the HOD letter.
Thus, after receipt of the letter of instruction, the school functioned in
accordance with Mr Schreuder’s letter of instruction.
21.5 Selective discipline: The arbitrator failed to properly consider the evidence
of selective discipline. The evidence established that other principals
actively supported the same campaign to close schools and used social
media platforms to publicise the campaign. Despite this widespread
participation, only the applicant faced disciplinary charges. Mr Stander
conceded under cross-examination that charging only the applicant would
not be fair if other principals engaged in identical conduct. When asked
directly why only the applicant was charged, Mr Stander could offer no
explanation, testifying: “I can ’t answer that. ” Ms du Plessis testified that
she asked Mr Allan Meyer, a Deputy Director -General, whether there was
a witch -hunt against the applicant, and when asked whether she
supported his dismissal, she refused. The arbitrator ’s finding that the
applicant was not similarly situated to other principals because Heathfield
High was the only school with zero attendance for three weeks conflated
the instruction (which related to zero attendance) with the incitement
charge (which related to campaign participation in which numerous
principals engaged).
21.6 Charge 3 (Insolence) - Selective extraction: The charge was based on a
selective extraction of the applicant ’s letter of 26 July 2020 which failed to
include material aspects such as his confirmation that he would comply
with the instructions received and his proposal for engagement. The
3 Act 84 of 1996.
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arbitrator failed to consider the full context of the letter, including that it
was written during a period of extreme pandemic stress and competing
pressures.
21.7 Charge 4 (Disrepute) - No evidence of prejudice: No evidence was led to
prove that the Department suffered any prejudice or harm as a result of
the applicant’s letter. Furthermore, another principal sent an open letter to
the media highly critical of the WCED and faced no disciplinary action,
demonstrating inconsistent treatment.
21.8 Charge 5 (Incitement) - Protected activity: The applicant ’s conduct
constituted lawful advocacy in support of SADTU ’s official policy position
on school closures during the pandemic, not incitement to unlawful
behaviour. The term “ incitement” has a specific legal meaning urging
unlawful conduct, which does not apply to the applicant ’s calls for lawful
school closures in the interests of health and safety.
21.9 Charge 6 (Social Media Policy) - Lack of knowledge: The applicant
testified that he was not aware of the WCED social media policy until his
disciplinary hearing and had never received training on it. His immediate
superior, Ms du Plessis, confirmed that she was also unaware of the
policy. An employee cannot be disciplined for breach of a policy that was
not properly communicated to him.
21.10 Sanction - No breakdown in trust: No evidence was presented
demonstrating that the trust relationship had been irreparably broken. The
only witness who testified to a breakdown in trust was Mr Schreuder, who
had little or no interaction with the applicant. In contrast, the applicant ’s
immediate superiors , Mr Stander (District Director) and Ms du Plessis
(Circuit Manager), testified that they worked well with the applicant and did
not support his dismissal. Ms du Plessis testified that there was no merit to
the case. The employer ’s offer of demotion as an alternative to dismissal
is itself an indication that there was no irretrievable breakdown of trust.
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21.11 Failure to consider relevant factors: The arbitrator failed to consider all
relevant factors, including: (a) the extraordinary circumstances of the
COVID-19 pandemic and the genuine fear among educators, learners and
parents; (b) the applicant ’s unblemished disciplinary record; (c) the 2020
matric results at Heathfield High School, which were the best for
community schools in the circuit; (d) the fact that the applicant was never
suspended during the two- year disciplinary process; and (e) the School
Evaluation Authority’s description of the applicant as very professional.
[22] The first respondent opposed the review application. As a preliminary point, the
first respondent contended that this Court should decline jurisdiction in light of the
applicant’s pending High Court proceedings (Case 22978/23) challenging the
legality of his disciplinary process. This submission has been addressed above.
On the merits, the first respondent contends that: (a) the arbitrator ’s findings on
each charge fall within the band of reasonableness; (b) the applicant ’s own
words in the 26 July 2020 letter constitute insolence that stands alone as
dismissal-worthy conduct; (c) three independent adjudicators (the presiding
officer at the disciplinary hearing, the MEC on appeal, and the arbitrator) found
the dismissal to be fair; (d) the Gazette 639 protection does not apply because
the applicant attended work throughout and the charges related to failure to
follow instructions, not refusal to work; (e) the applicant was not similarly situated
to other principals because Heathfield High was the only school with zero learner
attendance for three weeks and there was no evidence of another principal who
posted to the same extent or with the same inflammatory content as the
applicant; (f) the applicant ’s lack of remorse and his post -dismissal statement
that he would do it again justified dismissal with his defiant defence preventing
that he would do it again justified dismissal with his defiant defence preventing
him from showing remorse; (g) the applicant rejected the offer of demotion as an
alternative sanction and is bound by that election; (h) disciplinary investigations
fall under the Labour Relations Directorate, not the Circuit/District Managers; and
(i) the threshold for review is high and the applicant has not demonstrated that
the award is one that no reasonable arbitrator could reach.
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Review Test
[23] In Sidumo & another v Rustenburg Platinum Mines Ltd & others (Sidumo),4 the
Court held that “the reasonableness standard should now suffuse section 145 of
the LRA”, and that the threshold test for the reasonableness of an award was: “…
Is the decision reached by the commissioner one that a reasonable decision
maker could not reach?...” 5. In Herholdt v Nedbank Ltd (Congress of SA Trade
Unions as Amicus Curiae) 6 (Herholdt) the Court applied this reasonableness
consideration as follows:
“In summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the proceedings
falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in
the conduct of the proceedings to amount to a gross irregularity as
contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the
nature of the inquiry or arrived at an unreasonable result. A result will only
be unreasonable if it is one that a reasonable arbitrator could not reach on
all the material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance to be attached to particular facts, are not
in and of themselves sufficient for an award to be set aside, but are only of
any consequence if their effect is to render the outcome unreasonable.”
[24] This test has thus been applied as a two- stage review enquiry. Firstly, the review
applicant must establish that there exists a failure or error on the part of the
arbitrator. If this cannot be shown to exist, that is the end of the matter. Secondly,
if this failure or error is shown to exist, the review applicant must then further
show that the outcome arrived at by the arbitrator was unreasonable. If the
outcome arrived at is nonetheless reasonable, despite the error or failure, that is
equally the end of the review application. In short, in order for the review to
4 (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC).
5 Id at para 110.
4 (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC).
5 Id at para 110.
6 (2013) 34 ILJ 2795 (SCA); [2013] 11 BLLR 1074 (SCA) at para 25.
13
succeed, the error or failure must affect the reasonableness of the outcome to
the extent of rendering it unreasonable.
[25] Further, the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator, as to whether the outcome of
the arbitrator arrived at can nonetheless be sustained as a reasonable outcome,
even if it may be for different reasons or on different grounds.
7 This necessitates
a consideration by the review court of the entire record of the proceedings before
the arbitrator, as well as the issues raised by the parties before the arbitrator,
with the view to establish whether this material can, or cannot, sustain the
outcome arrived at by the arbitrator. In the end, it would only be if the outcome
arrived by the arbitrator cannot be sustained on any grounds, based on the
material, and the irregularity, failure or error concerned is the only basis to
sustain the outcome the arbitrator arrived at, then the review application would
succeed.
8
[26] In Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & Others 9
(Goldfields) the Labour Appeal Court further explained the reasonableness test in
the following terms:
“[15] A ‘process-related review suggests an extended standard of review,
one that admits the review of an award on the grounds of a failure by the
arbitrator to take material facts into account, or by taking into accounts
facts that are irrelevant, and the like. The emphasis here is on process
and not result. Proponents of this view argue that where an arbitrator has
committed a gross irregularity in the conduct of the arbitration as
contemplated by s145(2), it remains open for the award to be reviewed
and set aside irrespective of the fact that the decision arrived at by the
7 Fidelity Cash Management Service v Commission for Conciliation Mediation and Arbitration & Others
[2007] ZALAC 12; [2008] 3 BLLR 197 (LAC); (2008) 29 ILJ 964 (LAC) at para 102.
[2007] ZALAC 12; [2008] 3 BLLR 197 (LAC); (2008) 29 ILJ 964 (LAC) at para 102.
8 See Campbell Scientific Africa (Pty) Ltd v Simmers & others (2016) 37 ILJ 116 (LAC); [2016] 1 BLLR 1
(LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer & others (2015) 36 ILJ
1453 (LAC); [2015] 4 BLLR 394 (LAC) at para 12.
9 [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC).
14
arbitrator survives the Sidumo test. I disagree. What is required is first to
consider the gross irregularity that the arbitrator is said to have committed
and then to apply the reasonableness test established by Sidumo. The
gross irregularity is not a self -standing ground insulated from or standing
independent of the Sidumo test. That being the case, it serves no purpose
for the reviewing court to consider and analyse every issue raised at the
arbitration and regard failure by the arbitrator to consider all or some of the
issues albeit material as rendering the award liable to be set aside on the
grounds of process-related review.”
and
“[20] To do it differently or to evaluate every factor individually and
independently is to defeat the very requirement set out in section 138 of
the LRA which requires the arbitrator to deal with the substantial merits of
the dispute between the parties with the minimum of legal formalities and
do so expeditiously and fairly. This is also confirmed in the decision of
CUSA v Tao Ying Metal Industries. Failing to consider a gross irregularity
in the above context would mean that an award is open to be set as ide
where an arbitrator (i) fails to mention a material fact in his award; or (ii)
fails to deal in his/her award in some way with an issue which has some
material bearing on the issue in dispute; and/or (iii) commits an error in
respect of the evaluation or considerations of facts presented at the
arbitration. The questions to ask are these: (i) In terms of his or her duty to
deal with the matter with the minimum of legal formalities, did the process
that the arbitrator employed give the parties a full opportunity to have their
say in respect of the dispute? (ii) Did the arbitrator identify the dispute he
was required to arbitrate (this may in certain cases only become clear
after both parties have led their evidence)? (iii) Did the arbitrator
understand the nature of the dispute he or she was required to arbitrate?
understand the nature of the dispute he or she was required to arbitrate?
(iv) Did he or she deal with the substantial merits of the dispute? and (v) Is
15
the arbitrator’s decision one that another decision-maker could reasonably
have arrived at based on the evidence?”
and
“[21] Where the arbitrator fails to have regard to the material facts it is
likely that he or she will fail to arrive at a reasonable decision. Where the
arbitrator fails to follow proper process he or she may produce an
unreasonable outcome (see Minister of Health and Another v New Clicks
South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC)). But again, this is
considered on the totality of the evidence not on a fragmented, piecemeal
analysis. As soon as it is done in a piecemeal fashion, the evaluation of
the decision arrived at by the arbitrator assumes the form of an appeal. A
fragmented analysis rather than a broad based evaluation of the totality of
the evidence defeats review as a process. It follows that the argument that
the failure to have regard to material facts may potentially result in a
wrong decision has no place in review applications. Failure to have regard
to material facts must actually defeat the constitutional imperative that the
award must be rational and reasonable - there is no room for conjecture
and guesswork”
[27] The Labour Appeal Court in Head of the Department of Education v Mofokeng
and Others
10 (Mofokeng) provided the following exposition of the review test:
“[32] … To repeat: flaws in the reasoning of the arbitrator, evidenced in the
failure to apply the mind, reliance on irrelevant considerations or the
ignoring of material factors etc. must be assessed with the purpose of
establishing whether the arbitrator has undertaken the wrong enquiry,
undertaken the enquiry in the wrong manner or arrived at an unreasonable
result. Lapses in lawfulness, latent or patent irregularities and instances of
dialectical unreasonableness should be of such an order (singularly or
10 [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC); (2015) 36 ILJ 2802 (LAC).
16
cumulatively) as to result in a misconceived enquiry or a decision which no
reasonable decision-maker could reach on all the material that was before
him or her.
[33] Irregularities or errors in relation to the facts or issues, therefore, may
or may not produce an unreasonable outcome or provide a compelling
indication that the
arbitrator misconceived the inquiry. In the final analysis,
it will depend on the materiality of the error or irregularity and its relation to
the result. Whether the irregularity or error is material must be assessed
and determined with reference to the distorting effect it may or may not
have had upon the arbitrator’s conception of the inquiry, the delimitation of
the issues to be determined and the ultimate outcome. If but for an error or
irregularity a different outcome would have resulted, it will ex hypothesi be
material to the determination of the dispute. A material error of this order
would point to at least a prima facie unreasonable result. The reviewing
judge must then have regard to the general nature of the decision in issue;
the range of relevant factors informing the decision; the nature of the
competing interests impacted upon by the decision; and then ask whether
a reasonable equilibrium has been struck in accordance with the objects
of the LRA. Provided the right question was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By the
same token, an irregularity or error material to the determination of the
dispute may constitute a misconception of the nature of the enquiry so as
to lead to no fair trial of the issues, with the result that the award may be
set aside on that ground alone. The arbitrator, however, must be shown to
have diverted from the correct path in the conduct of the arbitration and as
a result failed to address the question raised for determination.”
[28] In reviewing the appropriateness of sanction, the question is not whether this
[28] In reviewing the appropriateness of sanction, the question is not whether this
Court would have imposed the same sanction, but whether the sanction of
dismissal falls within the range of sanctions that a reasonable decision- maker
17
could impose. As stated in Toyota SA Motors (Pty) Ltd v Radebe 11 (Toyota), the
emphasis is on what is fair, which requires a value judgment. The C ourt must
also consider the cumulative effect of multiple transgressions when assessing
whether dismissal is a proportionate response. Fairness comprehends that
regard must be had not only to the position and interests of the worker, but also
those of the employer, in order to make a balanced and equitable assessment.
[29] The Court will now proceed to consider the review application against the above
principles and the test applicable to review applications.
[30] Before turning to the evaluation of the grounds of review, this Court first
addresses the first respondent’s submission that three adjudicators being the
presiding officer at the disciplinary hearing, the MEC on appeal, and the arbitrator
all found the dismissal fair, and that this consistency militates against
interference. This submission conflates consistency with reasonableness . The
Sidumo test does not ask whether multiple decision- makers agreed. It asks
whether the decision is one that a reasonable decision- maker could reach.
Where three adjudicators apply the same flawed reasoning or fail to engage with
the same material evidence, the consistency of their conclusions is unremarkable
and provides no answer to the review. The task of this Court is to assess whether
the arbitrator’s award is reasonable on the totality of the evidence and not to
count heads.
Evaluation of grounds of review
[31] The applicant bears the onus of establishing that the arbitrator ’s award is
reviewable. Applying the test articulated in Sidumo, Herholdt and Gold Fields ,
this Court must determine whether the decision reached by the arbitrator is one
that a reasonable decision-maker could not reach on the material before him. It is
necessary to examine each charge upon which the arbitrator found the applicant
guilty. However, before addressing each charge, it is necessary to provide a brief
guilty. However, before addressing each charge, it is necessary to provide a brief
11 (2000) 21 ILJ 340 (LAC).
18
background as testified to by the applicant , which was mostly undisputed during
his cross examination.
Background March 2020 to July 2020
[32] The applicant testified that he was looking at the impact of COVID -19
internationally even before lockdown in South Africa. In anticipation, a workbook
system was designed to teach learners when not at school; WhatsApp groups
were set up to communicate with parents and learners; and the school made
sure that the Facebook page is up and running.
[33] After the initial lockdown in SA, a press briefing was held, and circulars were
issued about the re- opening of schools. At that time there was a lot of
uncertainty, everyone was anxious and infection rates were increasing. People
were fearful not knowing what to expect; it was uncertain times during April early
May 2020.
[34] The applicant, in his position as principal of Heathfield High School, was required
to be at work before 1 June 2020 to receive PPE. He went to school on his own
for more than 3 weeks to receive PPE, which did not arrive during that time. He
further went to work despite not feeling too comfortable in doing so.
[35] The applicant testified about the infrastructure before March 2020 and also since
March 2020. The majority of toilets in the ablutions were not in working order and
sewerage was running down the gutters causing a stench. Taps were not
working at the school, and he also testified about the lack of finance due to the
grading of the school.
[36] At the time when the schools re- opened, Heathfield faced a serious problem with
staff. There were 32 to 33 educators at the school and of those, 15 educators
remained at home due to comorbidities. On 8 June 2020, the applicant emailed
Ms Du Plessis advising that on the first day back at school, 101 out of 123 G rade
12 learners were present. Heathfield had not yet received various PPE items as
at 8 June 2020. The school was not saniti sed, and no support staff was allocated
19
to help with temperature screening, deep cleaning and monitoring. There were 3
support staff employed at the school, two of whom were not at work due to
comorbidities. Daily cleaning and sanitizing were virtually impossible.
[37] The school was concerned about the safety of everyone; the safety of learners,
educators, the community and the applicant was concerned about his own
safety. According to the applicant , the minimum safety standards were not in
place, and he addressed his concerns with Ms Du Plessis.
[38] The applicant also referred to the collective grievance raised by FAWUSA on
behalf of support staff / general assistants, whose job descriptions, according to
the grievance, were unilaterally changed. The applicant believed that this was a
legitimate complaint although he was not tasked to deal with the grievance. The
general assistants were stating that they were not going to perform sanitising and
cleaning as per the guidelines. The impact of this on Heathfield was that 2 of the
3 support staff were already off due to comorbidities and the one who was at
work was reluctant to clean and sanit ise until the grievance was resolved. The
classes were therefore not sanitised as they should have been.
[39] The applicant testified that this was a very difficult period and that there was a lot
of anxiety and a lot of fear for everyone’ s safety. The educators went to a
recycling plant to collect empty bottles to fill with sanitizers, whereafter each
learner was given their own bottle to clean after them. The school had no
dispensers at the time.
[40] During this time, teachers approached the applicant advising that classes were
not being sanitised and that it was his responsibility. The applicant was told that if
anything should happen, he would be held responsible as it was his responsibility
to ensure that the school is clean and safe. The applicant escalated these
concerns to his superiors.
[41] The applicant testified that he also served on the executive committee of the
[41] The applicant testified that he also served on the executive committee of the
SADTU branch, which represented some 140 schools. He held this position for
20
some 12 years. The applicant referred to an article of the Mail and Guardian that
called for the closure of schools. SADTU, however, told their members to go to
work whilst they were engaging the relevant role- players, which the applicant did
with much reluctance given his own fears and the fear for the safety of those he
bore responsibility for.
[42] The applicant testified that during the first week of June 2020, when SMT came
back to the school, he was verbally attacked by a head of department. This was
done in the presence of Ms Du Plessis. The applicant was informed that the head
of department did not feel safe. Around that time, one of the staff member’s
parents passed on and this upset the morale at the school; it pushed up the
anxiety at the school and people were shouting and were angry. All of this was
directed at him. They were all fearful when they received the news. Ms Du
Plessis saw the level of fear and anxiety amongst staff first -hand when she was
at the school.
[43] During June 2020 and due to the 15 educators being absent due to
comorbidities, the school w as left with 15 to 16 educators. Some of those at
school became infected or were in close contact with infected people and they
then had to isolate for 14 days. This caused the educators present at school
during June 2020 to reduce to 11 or 12 and sometimes to 9 educators who had
to manage the work at school. This was very difficult for the staff that remained at
the school.
[44] Also, during June 2020, there were two positive COVID cases at the school, Ms
Sadeeq and Mr Doman. One of them had to be hospitalised. This again
compounded fears and anxiety at the school and the very next day there was a
very high absenteeism rate at the school because people were fearful and
scared. This affected the overall psyche of the school.
[45] The evidence of Ms Tanya Syce (“Ms Syce”), a Grade 12 learner at Heathfield
High School in 2020, corroborated the reality of the fear. She testified that a
High School in 2020, corroborated the reality of the fear. She testified that a
teacher at the school tested positive for COVID -19 during June/July 2020. More
21
significantly, she testified that Mr Anthony Ram (“Mr Ram”), a member of the
cleaning staff at Heathfield High School who attended her church, died from
COVID-19 in August/September 2020. She also testified that a close family friend
contracted the virus and died. These were not abstract fears . People connected
to the school community were actually dying.
[46] Ms Syce testified about her own anxiety and reasons for staying home until 3
August 2020. She explained that she could sanitise her own desk and wash her
own hands, but she could not speak for her classmates, some of whom did not
know how to wear their masks properly. Some of her classmates used public
transport where social distancing was not observed, and others came from
informal settlements where hygiene was already a challenge. Her mother and
brother had comorbidities, and she was concerned about bringing the virus
home. This testimony humanises the safety concerns and demonstrates that they
were genuinely health-based, not politically motivated.
[47] Despite the challenged faced by Heathfield High School, the initial attendances
were good and in line with other schools. In p articular, on 9 June 2020 the Grade
12 learners’ attendance was at 80.5% and on 10 June 2020 at 57.7%. These
figures came from the spreadsheet compiled by Ms Du Plessis herself and were
not disputed.
[48] Mr Schreuder conceded in cross -examination that the teachers were complying
with their duties. He testified: “ The whole issue was not whether Mr. Neumann
and teachers were or were not at school. All indications were that they were
mostly at school. The issue was that learners were not at school.” This admission
is significant. The educators were present and teaching; the dispute was about
learner attendance, which was substantially outside the applicant’s control given
the parents’ decisions.
[49] The applicant testified that in July 2020 the SGB sent a letter to parents,
[49] The applicant testified that in July 2020 the SGB sent a letter to parents,
reporting on safety at the school and asked parents to consider safety factors.
The SGB asked parents not to send their children to school until after the peak of
22
infections have been reached and until the infections were decreasing. The
applicant was required to report to the SGB on the safety challenges at the
school. Importantly, it was the SGB and not the applicant t hat initiated this letter
to parents.
[50] The applicant responded to the SGB’s recommendation and advised, by quoting
legislation, that any decision taken must be in line with the law. The applicant
also informed the SGB that they do not have the power to close the school, as
this would put the SGB in conflict with legislation. The applicant, however, did not
personally feel that the school was safe, but he indicated that he has the
personal obligation to have the learners at school. The applicant , however, also
mentioned that there was an obligation regarding safety and that safety of all was
the most important factor at that time.
[51] Mr Schreuder accepted that the applicant had warned the SGB about the legal
limits of their powers. In cross -examination, Schreuder conceded: “I accede that
according to this minute, he raised the concern and he correctly warned him [the
SGB].” This admission directly contradicts the charge of incitement . Far from
inciting the SGB to close the school, the applicant warned them that they could
not lawfully do so.
[52] Following the letter sent by the SGB, Mr Stander visited the school and instructed
the applicant to send out a letter that the schools were open. The applicant sent
out a letter on 9 July 2020 and asked parents to attend a meeting on 14 July
2020 where the issues could be discussed in person. Mr Stander’s message was
conveyed to the parents at this meeting. They were informed that the schools
were open and that, if the parents want to keep their children at home, they were
required to complete the exemption f orm. The process of exemption was
explained to the parents.
[53] There was no due date for the exemption letters to be completed although most
[53] There was no due date for the exemption letters to be completed although most
of the forms were received by 20 July 2020. The applicant , however, did not
submit the forms as yet as there were two issues that needed clarification. The
23
applicant discussed these two issues with Ms Du Plessis, who was unable to
give the clarity required. Ms Du Plessis advised him to hold on to the forms until
she came back to him, which he did.
[54] Ms Du Plessis never came back to him regarding the clarity needed, as in the
meantime the schools closed on 24 July 2020 and only re- opened on 3 August
2020. The matter was left unresolved.
[55] This background establishes the extraordinary circumstances in which the
applicant was operating. The infrastructure was inadequate. PPE was delayed.
Staff were absent in droves due to comorbidities and COVID infections. People
connected to the school were dying. The FAWUSA grievance meant cleaning
could not be done. And through all of this, the applicant attended work, escalated
his concerns through proper channels, warned the SGB about legal limits, and
complied with Stander ’s instruction by calling for a parent meeting where he
explained the exemption process. The charges against him must be assessed
against this factual matrix.
Charge 2
[56] Charge 2 reads as follows:
“It is alleged that you are guilty of misconduct in terms of Section 18(1)(i )
of the Act, in that on or about 24 July 2020, as Principal of Heathfield High
School, you failed to carry out a lawful order or routine instruction without
just or reasonable cause issued to you by Mr BK Schreuder, Head of
Education, to action the following:
(i) Issue letters to parents of Grade 12 learners ensuring that they
attend school from 3 August 2020; and/or
(ii) Ensuring that educators teaching Grade 12 learners are on duty
and teaching the learners every day of the school week; and/or
(iii) Informing the School Governing Body in writing of these
instructions and that instructions or coercion to the contrary fall
24
outside their functions of governance and oversight and to submit
copies of the above to Mr Schreuder, by close of business on 24
July 2020.”
[57] The applicant was charged with failing to carry out a lawful order or routine
instruction without just or reasonable cause. The instruction was contained in a
letter dated 24 July 2020 from the Head of Department, Mr Schreuder. The
arbitrator found the applicant guilty , and the question is whether this finding falls
within the band of decisions that a reasonable decision-maker could reach.
[58] The instruction required the applicant to do the following: (a) ensure that every
Grade 12 learner and their parents are informed in writing of the requirement that
every Grade 12 learner must physically be at school every day from 3 August
2020 until the start of the final NSC examinations; (b) ensure that educators
teaching Grade 12 learners are on duty and actively teaching every day of the
school week; and (c) inform the School Governing Body in writing of these
instructions and that any instructions or acts of coercion to the contrary fall
outside their functions of governance and oversight. The applicant was also
instructed to submit copies of the letters to Mr Schreuder by close of business on
24 July 2020.
[59] The applicant advances two principal defences . F irst, that the instruction was
unlawful and second, in the alternative, that he substantially complied with it. On
the lawfulness question, the applicant contends that the instruction was issued in
a regulatory vacuum. On 23 July 2020, the President announced that schools
would close. The first respondent issued a circular on 24 July 2020 confirming
the closure. Government Gazette 43465 of 23 June 2020, which had governed
school operations, was effectively superseded by the President ’s announcement,
and the new regulatory framework was only publi shed on 2 August 2020. The
applicant further invokes the principle of estoppel, arguing that the Department
applicant further invokes the principle of estoppel, arguing that the Department
cannot rely on the earlier Gazette after representing through its circulars that
schools were closed.
25
[60] The applicant additionally contends that the instruction requiring him to inform the
SGB that their instructions fall outside their functions of governance and
oversight was itself unlawful. The SGB had resolved on 3 July 2020 that the
school would not reopen until after the pandemic peak. Section 22 of the Schools
Act confers governance functions upon the SGB. The applicant submits that the
principal has no authority to overturn SGB resolutions.
[61] On the alternative defence of compliance, the applicant contends that: (a) h e
undertook in his letter of 26 July 2020 to comply with the instructions; (b) G rade
12 learners were informed and returned to school on 3 August 2020; (c) G rade
12 educators were on duty and teaching from 3 August 2020; and (d) h e
forwarded the HOD ’s letter to the SGB via WhatsApp. The applicant contends
that these facts constitute substantial compliance.
[62] The first respondent contends that the instruction was neither unlawful nor
unreasonable. It submits that the COVID regulations relied upon by the applicant,
which permit an employee to refuse work posing an imminent threat of exposure,
have no application because the applicant was not himself refusing to work.
[63] On the compliance question, the first respondent ’s case is that: (a) t he applicant
never issued the letters as instructed; (b) f orwarding the HOD’s letter to the SGB
WhatsApp group did not constitute “ informing the SGB in writing ”; (c) t he
applicant’s email of 26 July 2020 indicated that he would only send letters “once
the Minister of Basic Education gazettes the new dates ”, a clear challenge to the
HOD’s authority; (d) th e applicant ’s letter to parents dated 2 August 2020 was
deficient because it merely urged parents rather than informing them of the legal
requirement and expressly stated that parents could keep children at home; and
(e) the applic ant never submitted copies of any letters to Mr Schreuder as
instructed.
(e) the applic ant never submitted copies of any letters to Mr Schreuder as
instructed.
[64] The arbitrator found that the applicant never issued letters as instructed and
instead he forwarded Mr Schreuder’s letter to the SGB. The arbitrator found that,
in his view, that does not amount to him issuing a letter to the parents and the
26
SGB. The reason why the SGB needed to be informed in writing is that by
closing the school they fall outside the function of governance and oversight in
that only the Head of Education can do so. The arbitrator found that the
instruction was not unlawful and not unreasonable and that it was not for the
applicant to refuse the instruction based on his interpretation of the lockdown
regulations. According to Mr Schreuder, there were internal consultat ions and he
would therefore have been aware before the prom ulgation as to what was to
come. The arbitrator, however, agreed that the instruction for the applicant to
provide Mr Schreuder with copies of letters addressed to the parents and to the
SGB by the close of business on 24 July 2020 was unreasonable. However, the
applicant subsequently did not provide Mr Schreuder with such letters.
[65] In determining whether the applicant was guilty, the arbitrator had to consider:
a. The misconduct that the applicant was said to have committed;
b. Whether the instruction was lawful, reasonable or fair;
c. Whether the applicant was in a position to carry out the instruction; and
d. Whether there was a lawful or reasonable excuse for the applicant to
refuse to carry out the instruction?
[66] The misconduct that the a pplicant was said to have committed is clear from
charge 2, i.e., the applicant’s failure to carry out a lawful order or routine
instruction without just or reasonable cause to action the four issued identified
above. The arbitrator correctly identified the alleged misconduct and there can be
no challenge to the arbitrator’s finding in this regard.
[67] The next question the arbitrator was required to ask, and answer was whether
the instruction was lawful, reasonable or fair. The arbitrator found that the
instruction was not unlawful and not unreasonable, as it was not for the applicant
to refuse the instruction based on his interpretation of the lockdown regulations.
to refuse the instruction based on his interpretation of the lockdown regulations.
This Court is of the view that although the instruction, on the face of it, was not
27
unlawful, the arbitrator failed to properly consider whether the instruction was
reasonable or fair given the contextual background prevalent at the time, i.e., the
fear and anxiety and the numerous campaigns against the re -opening of the
schools. Reasonableness must be assessed not in the abstract but in the
prevailing circumstances. At the time, the school had recently experienced
COVID-19 infections and educators and learners expressed genuine fear. The
department itself had announced school closures the previous day. Against this
backdrop, the instruction to issue letters by close of business on the same day,
and to assert a legal requirement that even the HOD could not identify, required
careful scrutiny.
[68] The arbitrator finds that it was not for the applicant to refuse the instruction based
on his interpretation of the lockdown regulations and refers to Mr Schreuder’s
evidence that there are internal consultations with the various stakeholders and
that Mr Schreuder would therefore have been aware before the promulgation
what was to come. The difficulty with this finding is that the applicant was not
made aware of these internal consultations and what was to come on 2 August
2020 other than the say-so of Mr Schreuder in his letter of 24 July 2020.
[69] The question that ought therefore to have been asked by the arbitrator is firstly
whether the applicant failed to comply with the lawful instruction. The arbitrator
finds that the applicant never issued letters as instructed and that the applicant
instead forwarded Mr Schreuder’s letter to the SGB. In the arbitrator’s view, the
forwarding of the letter to the SGB does not amount to the applicant issuing a
letter to the parents and the SGB.
[70] The arbitrator’s finding in this regard falls short of having properly analysed the
evidence presented, as well as addressing all 4 issues referred to in the charge.
The first instruction was for the applicant to issue letters to parents of Grade 12
The first instruction was for the applicant to issue letters to parents of Grade 12
learners ensuring that they attend school from 3 August 2020. The arbitrator fails
to consider the evidence that the letters were indeed sent by the applicant on 2
August 2020 after receipt of the directives. The arbitrator further failed to
28
consider the evidence that the applicant stated in his email of 26 July 2020 that
he will comply. T he applicant was not made aware of the internal consultations
and waited for the directive before he issued the letter. The arbitrator also failed
to consider the contents of the letter of 2 August 2020 and failed to make a
finding whether what was contained in the letter compli ed with the instruction.
The first respondent’s contention that the applicant’s letter on 2 August 2020 was
deficient because it urged rather than instructed parents had some force.
However, this must be assessed against the regulatory uncertainty at the time,
the absence of any identified regulation compelling attendance, and Mr
Schreuder’s own concession that he could not identify the legal basis for
compulsory attendance. In these circumstances, the applicant cannot be faulted
for adopting a cautious formulation.
[71] The arbitrator further failed to consider that the second issue of ensuring that
educators teaching Grade 12 learners are on duty and teaching the learners
every day of the school week was in fact complied with by the applicant.
Regarding the third issue, i.e., informing the SGB in writing of these instructions,
the arbitrator confined his analysis to the finding that forwarding the letter to the
SGB does not amount to the applicant issuing a letter. The letter of Mr Schreuder
was quite clear in terms of what had to be conveyed to the SGB. There was in
existence at the time a SGB WhatsApp group and the applicant forwarded the
letter to the SGB via the WhatsApp group. The arbitrator’s failure to recognise
WhatsApp as an established and accepted mode of written communication within
the SGB was disconnected from the evidence and rendered his conclusion
irrational. Did the applicant’s actions in doing so amount to a refusal to comply
with the instruction? In the Court’s view, the arbitrator’s decision that this does
with the instruction? In the Court’s view, the arbitrator’s decision that this does
not constitute compliance with the instruction is unreasonable. By forwarding the
very letter to the SGB via a recognised means of communication must be
regarded as compliance with the third instruction. The SGB was clearly made
aware upon receipt of the letter what Mr Schreuder’s instruction was.
29
[72] In respect of the fourth issue, the arbitrator correctly found that the fourth issue of
providing Mr Schreuder with copies of letters addressed to the parents and to the
SGB by close of business on 24 July 2020 was unreasonable. The arbitrator
goes on and finds that the applicant subsequently did not provide Mr Schreuder
with such letters. However, when one finds that an instruction is unreasonable, it
surely is expected that this issue be properly addressed and concluded. A finding
that such letters were not subsequently provided does not address the
unreasonableness of the instruction. Once the arbitrator accepted that the
deadline was unreasonable, it was incumbent upon him to consider whether non-
compliance with an unreasonable instruction could constitute misconduct at all.
[73] In any event, the arbitrator’s finding that such letters were not subsequently
provided is not borne out by the evidence. There was no letter to the SGB, as the
applicant forwarded Mr Schreuder’s letter to the SGB via WhatsApp. The
evidence also shows that the letters to the parents were issued on 2 August
2020. The arbitrator does not address the issue whether Mr Schreuder received
a copy of the 2 August 2020 letter at all and instead finds that Mr Schreuder was
not provided with such letters. Mr Schreuder conceded under cross-examination
that he received a copy of the 2 August 2020 letter, albeit complaining that it was
received 7 days after his instruction and after the event. The arbitrator does not
address this evidence at all.
[74] This Court is of the view that the arbitrator failed to properly consider and apply
his mind to the evidence in concluding that the applicant is guilty of charge 2. The
arbitrator’s reasoning further did not address all elements of charge 2 and as
such arrived at an unreasonable conclusion in respect of charge 2. These
omissions were material because they go to the core of whether the applicant’s
omissions were material because they go to the core of whether the applicant’s
conduct constituted a willful refusal to obey a lawful and reasonable instruction.
Had the arbitrator considered this evidence, the outcome could reasonably have
been different.
30
[75] This Court is of the view that, although the instruction was lawful, the issue of the
reasonableness and the fairness of the instruction, and the compliance thereof,
albeit it not in exact terms as instructed, constituted sufficient compliance with the
instruction. Substantial compliance with an instruction, particularly where the
objective is achieved, is inconsistent with a finding of misconduct under section
18(1)(i), which requires a willful and serious refusal.
[76] The applicant provided a reasonable explanation for only sending the letters to
the parents on 2 August 2020 and he forwarded Mr Schreuder’s letter to the
SGB. The applicant ensured that all the teachers were teaching on 3 August
2020 and he could not comply with providing letters by close of business on 24
July 2020. The applicant should not have been found guilty of charge 2. The
applicant did not display a willful and deliberate refusal to comply with the
instruction. The definition of insubordination was articulated by the Labour
Appeal Court in Palluci Home Depot (Pty) Ltd v Herskowitz and Others
12 (Palluci)
as “a willful and serious refusal by an employee to obey a lawful and reasonable
instruction or where the conduct of an employee poses a deliberate (willful) and
serious challenge to the employer’s authority.” The applicant expressly undertook
to comply in his 26 July 2020 letter. He sent letters to parents on 2 August 2020.
Educators were on duty. Learners returned to school. This conduct is
inconsistent with wil lful defiance. The applicant complied with the instruction
albeit not in the exact form as instructed.
[77] The objective of the instruction was achieved. The SGB was informed via
WhatsApp; the parents were informed albeit on 2 August 2020; the teachers
were all teaching on 3 August 2020; and the instruction that the applicant must
provide copies of the letters before close of business on 24 July 2020 was
provide copies of the letters before close of business on 24 July 2020 was
unreasonable. The arbitrator’s finding in respect of charge 2 is not a finding that
falls within t he bands of reasonableness and must be reviewed and set aside.
The award therefore fails the Sidumo test.
12 [2014] ZALAC 81; [2015] 5 BLLR 484 (LAC); (2015) 36 ILJ 1511 (LAC).
31
Charge 3
[78] Charge 3 reads as follows:
“It is alleged that you are guilty of misconduct in terms of Section 18(1)(t)
of the Act, in that on or about 26 July 2020 as Principal of Heathfield High
School you displayed disrespect toward Mr BK Schreuder, in the
workplace or demonstrated abusive or insolent behaviour towards him by
remarking the following:
(a) ‘You resorted to pre-1994 methods of issuing instructions in Baasskap
manner instead of engaging with the school’; and/or
(b) ‘With your instructions as issued and the inaccuracies therein’; and/or
(c) ‘History is replete with politicians and bureaucrats who have fought
battles to the last drop of somebody’s blood. In this case it is the blood
of our children’; and/or
(d) ‘To deviate from this trend is unintelligent and reckless’; and/or
(e) ‘You clearly do not apply this maxim to yourself when you defy cabinet
decisions with respect to the duration of the closure of schools’; and/or
(f) ‘This defiance you have displayed repetitively’”.
[79] The applicant was charged with displaying disrespect, abuse, or insolent
behaviour towards Mr Schreuder. It must be noted that this charge is in respect
of the words used by the applicant in his letter dated 26 July 2020 in response to
Mr Schreuder’s letter dated 24 July 2020.
[80] The applicant contends that the charge is based on the selective extraction of his
letter, omitting his express confirmation that he would comply with the
instructions. He contends that “baasskap” was intended to describe
authoritarianism rather than racism. He points to inconsistent treatment , as
evidenced by the informal “ fireside chat ” approach taken with other principals
who expressed similar criticism. The applicant expressed remorse and sought a
roundtable meeting to resolve the matter.
32
[81] The first respondent contends that the letter is, on its plain reading, offensive,
insulting, insolent, and disrespectful. The reference to “ pre-1994 methods ” and
“baasskap” carries an unmistakable racial undertone. Describing Mr Schreuder
as unintelligent and reckless is defamatory. The applicant admitted the letter
could be viewed as an angry letter and that he thought about it before sending it.
The first respondent emphasises that the letter was not spontaneous but
considered, and that the letter itself does not mention specific safety concerns at
Heathfield High School.
[82] The arbitrator found that the reference to “ pre-1994” and “baasskap” ultimately
implies that Mr Schreuder is demonstrating the mentality of an apartheid racist
boss. The arbitrator characterised the applicant ’s conduct as gross
insubordination and not only insolence.
[83] This Court accept s that the applicant ’s letter contained intemperate language.
The references to “ baasskap” and “pre-1994 methods ” were ill- advised. The
description of the HOD as “unintelligent and reckless” was gratuitously offensive.
A senior educator should be capable of expressing disagreement without
resorting to such language. The fact that the applicant considered his response
before sending it does not assist him; if anything, it underscores that the
language was a deliberate choice rather than an impulsive outburst.
[84] However, the arbitrator’s characterisation of the conduct as gross insubordination
and not only insolence is a significant escalation from the actual charge, which
alleged insolence or abuse. The applicant ’s letter, while intemperate, expressly
undertook to comply with the instructions. This is inconsistent with gross
insubordination. The arbitrator did not adequately engage with context, the
applicant’s explanation of intent or the evidence of inconsistent treatment.
[85] The finding that the applicant was guilty of gross insubordination rather than
[85] The finding that the applicant was guilty of gross insubordination rather than
insolence elevates the charge beyond what was alleged and is not supported by
a reasoned analysis. A finding of insolence, as distinct from gross
insubordination, may be sustainable, but the arbitrator did not adequately reason
33
towards such a finding. The arbitrator’s failure to engage with mitigating factors
renders his reasoning process reviewable.
[86] Having considered the mitigating factors and especially the prevalence of fear
and anxiety that existed at the time, this Court finds that the arbitrator’s finding in
respect of this charge is unreasonable in that he failed to properly consider the
evidence before him. The applicant was under severe pressure and stress from
learners, parents, the SGB and the community, as well as based on his own
convictions about the threat to his, the administrative staff and learners’ safety. In
this regard, the Court took into consideration Mr Schreuder’s concession that the
fears were real, Ms Syce’ testimony regarding her own anxiety about returning to
school, Mr Stander ’s acknowledgment that the fear would have been consistent
with the emotions at every other institution, and the applicant ’s evidence that he
was under pressure from the SGB, parents and community. In such
circumstances, intemperate language, while regrettable, does not warrant the
characterisation of gross insubordination.
[87] The first respondent contends that the letter itself does not mention specific
safety concerns at Heathfield High School and that the applicant ’s reliance on
“context” as a defence is therefore misplaced. However, this submission
overlooks the independent evidence establishing that context. The school had
recently experienced COVID-19 infections. A teacher had tested positive in June
or July 2020. Mr Ram, a member of the school ’s cleaning staff who attended the
same church as Ms Syce, had died in August or September 2020. Ms Syce
testified that she herself experienced genuine anxiety about returning to school
because of the risk to her mother and brother who had comorbidities. The
context of fear and anxiety at Heathfield High was established through this
evidence, not merely through the content of the letter. The first respondent
evidence, not merely through the content of the letter. The first respondent
further points to Mr Schreuder ’s evidence that the reference to “ death being the
alternative” was harsh and inaccurate, noting that by December 2022 there had
been no learner deaths other than those with severe comorbidities. However, this
assessment benefits from hindsight. In July 2020, the risk of COVID -19 to
34
children was genuinely uncertain, and the fear that reopening schools could lead
to deaths was widespread and not unreasonable. The applicant ’s language must
be assessed in the context of what was known and feared at the time, not with
the benefit of subsequent knowledge.
[88] This Court also considered the evidence of Mr Stander when he referenced Mr
Wertheim’s highly critical social media content. He testified that the Department
charged no one for having a public opinion or a public view or a perspective on
the conditions in a rather strange environment. Reference was also made to Mr
Wertheim’s expressions being made in frustration.
[89] It appears to this Court that “what is good for the goose must be good for the
gander”. This idiom means that a rule or standard that applies in a situation
should apply to everyone equally, regardless of gender or characteristics. It
highlights the need for equitable and fair treatment where one group or person is
not favoured over others. This idiom is directly relevant to the issue of fair
treatment of employees in the workplace. It was deemed fair for some employees
to be spoken to and to have a “fireside chat” with them to resolve issues, but not
when it came to the applicant.
[90] The evidence suggests a strained relationship between the applicant and Mr
Schreuder, which appears to have influenced the manner in which the applicant
was treated. It appears that the applicant was treated different ly to other
employees especially when it came to the applicant expressing his frustration in
the letter of 26 July 2020 . Once again, this Court has already found that the use
of the specific expressions in the letter was intemperate and ought not to have
been used. This Court cannot, however, disregard the context in which such
words were used.
[91] This Court does not accept that the expressions used were done with the
purpose or intention to classify Mr Schreuder as a racist, or that it was used with
purpose or intention to classify Mr Schreuder as a racist, or that it was used with
specific racial undertones. The expressions used referred inter alia to the
applicant’s extreme frustration primarily caused by the climate of fear and
35
uncertainty created by the COVID -19 pandemic and the manner in which Mr
Schreuder was approaching the applicant. The arbitrator failed to appreciate and
consider the context in which the expressions were used.
[92] The approach to the interpretation of language with historical and political
connotations was recently considered by the Supreme Court of Appeal in
AfriForum v Economic Freedom Fighters
13 (AfriForum). The Court held at para
94 that context is everything in determining the meaning of words with historical
resonance. At para 103, the Court found that the reasonably well -informed
person would not understand provocative language literally where context
provided an alternative meaning. The Court rejected the literal interpretation
approach. Applying that principle, the references to “ baasskap” and “pre-1994”
methods should be understood in the context in which they were used as a
forceful criticism of what the applicant perceived as an authoritarian, top- down
management style during a period of unprecedented crisis, not as an accusation
of racial prejudice. The applicant ’s express undertaking in the same letter to
comply with the instructions is inconsistent with an intention to make a racial
accusation against the HOD.
[93] This Court finds that the applicant ’s letter of 26 July 2020 was disrespectful and
insolent within the meaning of section 18(1)(t) of the Employment of Educators
Act. While this Court has found that the expressions were not intended to impute
racism to the HOD, and should not be interpreted as a racial accusation, the
language used was nonetheless intemperate and inappropriate. Describing one’s
superior as “ unintelligent and reckless ”, accusing him of “defiance displayed
repetitively”, and using historically loaded terms such as “ baasskap”, even if
intended as criticism of management style rather than racial prejudice,
constitutes disrespectful and insolent behaviour. A subordinate is not entitled to
constitutes disrespectful and insolent behaviour. A subordinate is not entitled to
address a superior in such terms, regardless of the frustration that may have
prompted the communication.
13 [2024] ZASCA 82; 2024 (6) SA 1 (SCA), leave to appeal refused by the Constitutional Court on 27
March 2025.
36
[94] While the expressions used by the applicant were disrespectful and amounted to
insolence, they did not constitute gross insubordination. The misconduct must
therefore be properly characterised as insolence, which is a less serious form of
misconduct that does not, without more, justify the imposition of a sanction as
severe as dismissal or demotion, particularly where progressive discipline was
not considered and comparable misconduct by other employees attracted only
informal correction. The appropriate sanction for such misconduct falls to be
considered below.
Alternative 2 to Charge 4
[95] The alternative to Charge 4 on which the applicant was found guilty reads as
follows:
“It is alleged that you are guilty of misconduct in terms of Section 18(1)(dd)
in that on or about 26 July 2020 you committed a common law offence, in
that, as Principal of Heathfield High School, you acted in such a manner
as to bring the Western Cape Education Department into disrepute, by
including ‘All Media Houses’ in the email addressed to Mr BK Schreuder
by yourself.”
[96] The applicant denies sending the letter to the media. He testified that he marked
it “All media houses ” precautionarily because the school was a “ flashpoint” and
he included media houses “in case I needed to share it at a later stage because
parents were up in arms ”. He maintained that he did not in fact send it to any
media house. The letter was nevertheless published in Die Son newspaper.
[97] The first respondent contends that the applicant ’s explanation is implausible.
Why mark a letter for media houses if there is no intention to send it? The first
respondent further contends that if the applicant had genuinely intended the letter
to be private, he would have complained to Die Son about its publication and
apologised to the HOD. He did neither. The first respondent submits that the
arbitrator’s credibility finding should not be disturbed on review.
37
[98] The arbitrator found: “I simply do not believe the applicant when he says he did
not circulate the email to Mr Schreuder to media houses. Why insert as an
addressee to all media houses where you have no intention to do so?
Considering the frequency and excessiveness of the applicant ’s Facebook posts
the probabilities favour the conclusion that the email was circulated to media
houses by the applicant.”
[99] To succeed on a charge of bringing the employer into disrepute, the employer
must establish two elements: first, that the employee engaged in the conduct
alleged; and second, that such conduct caused, or was objectively likely to
cause, harm to the employer ’s reputation. The employer bears the onus on both
elements. Mere criticism of the employer, even if intemperate, does not without
more constitute conduct bringing the employer into disrepute. The question is
whether the conduct was of such a nature that a reasonable member of the
public would regard the employer with diminished esteem as a result.
[100] This charge accordingly raises two distinct factual questions: (a) Did the
applicant send the letter to the media? (b) Even if he did, was the content of the
letter such that its publication was objectively likely to bring the Department into
disrepute? These questions must be considered separately.
[101] The arbitrator found that the applicant sent the letter to media houses. This
finding was based entirely on inference. No direct evidence was led that the
applicant sent the letter to any media house. No representative of Die Son or any
other media house testified that they received the letter from the applicant. Die
Son did not disclose its source. The letter was circulated to the SGB and staff.
The possibility that it was leaked by someone other than the applicant cannot be
excluded.
[102] The arbitrator’s inference rested on two foundations: the inclusion of “ All media
houses” in the addressee field, and the applicant ’s general social media activity ;
houses” in the addressee field, and the applicant ’s general social media activity ;
his “frequency and excessiveness ” of Facebook posts. The first foundation is
equivocal. The applicant ’s explanation that he included media houses as a
38
contingency in case he needed to share it later may be improbable, but it is not
implausible. Preparing for a contingency is not the same as acting on it. The
second foundation is more troubling. The arbitrator reasoned that because the
applicant was prolific on social media, he probably sent the letter to the media.
This reasoning conflates propensity with proof. The fact that a person has a
propensity to post on social media does not establish, on a balance of
probabilities, that he performed a specific act of sending a letter to newspapers.
Propensity reasoning of this nature is impermissible.
[103] The first respondent contends that the applicant ’s failure to complain to Die Son
about the publication, and his failure to apologise to the HOD for it, demonstrate
that he intended the publication. This submission is unpersuasive. The failure to
complain to a newspaper is equally consistent with resignation to an unwanted
publication or a recognition that such a complaint would be futile. The failure to
apologise is consistent with the applicant ’s position that he did not send the
letter. An apology for publication would have been inconsistent with that position.
[104] The arbitrator’s inference that the applicant sent the letter to the media is not the
only reasonable inference available on the evidence. The letter could have been
leaked by any number of people to whom it was circulated. The arbitrator did not
adequately consider this possibility. The finding that the applicant sent the letter
to the media accordingly does not fall within the band of reasonable decisions
that a decision-maker could reach on the evidence.
[105] Even if the arbitrator’s inference were to be accepted, the charge still fails on the
second element. The first respondent led no evidence that the Department ’s
reputation was actually harmed by the publication of the letter. No witness
testified that parents, the community, or any stakeholder lost confidence in the
testified that parents, the community, or any stakeholder lost confidence in the
WCED as a result. No documentary evidence of reputational damage was
presented.
[106] The first respondent ’s case rests entirely on the proposition that the content of
the letter was inherently likely to cause reputational harm. This proposition must
39
be tested against the content of the letter and the context in which it was
published.
[107] The letter criticised the manner in which the HOD issued instructions during a
period of unprecedented uncertainty. It did not disclose confidential information. It
did not make false statements of fact about the Department. It did not allege
corruption, fraud, or criminality. The letter expressed the applicant ’s
disagreement with the HOD ’s approach in intemperate terms , a matter already
addressed under Charge 3, where this Court found the applicant guilty of
insolence but expressly found that the “ baasskap” and “pre-1994” references
were not intended as racial accusations against the HOD.
[108] The first respondent contends that the Die Son article created the impression that
the WCED was insisting on unsafe school attendance and that the “ baasskap”
reference implied the WCED was racist. As to the first contention, the view that
schools were not safe was held by teacher unions, parent bodies, and many
educators during July 2020. Expressing that view, even publicly, does not bring
the employer into disrepute where the view is part of legitimate public debate. As
to the second contention, this Court has already found under Charge 3 that the
“baasskap” expression was not intended as a racial accusation. It cannot
simultaneously be found to bring the Department into disrepute on the basis that
it implied the WCED was racist.
[109] Ms Hammond, the WCED ’s Director of Communications, acknowledged under
cross-examination that there was an ongoing debate about school reopening
during the pandemic. When asked whether the debate was “ contested terrain”,
she agreed. She further acknowledged: “ It was a pandemic. ” The applicant ’s
views, while expressed intemperately, were not materially different from views
expressed by teacher unions, parent bodies, and other principals at the time.
Expressing a view that was part of legitimate public discour se, even if that view
Expressing a view that was part of legitimate public discour se, even if that view
was critical of the employer, does not inherently bring the employer into
disrepute.
40
[110] The evidence of inconsistent treatment further undermines the charge. Ms
Hammond testified that a video featuring WCED employees expressing views
similar to those of the applicant was submitted to Labour Relations. When asked
whether those employees were in breach of the communication policies, Ms
Hammond conceded: “Yes, they probably would be. ” Yet no one was charged.
Ms Hammond also admitted: “ We're not going to take action against someone
who’s promoting positive. ” This reveals a selective approach to enforcement. If
public expression of similar views by other employees did not warrant disciplinary
action, the differential treatment of the applicant requires justification. None was
provided.
[111] The content of the letter was not of such a nature that a reasonable member of
the public would regard the department with diminished esteem. The letter was a
critique of the Department ’s COVID- 19 policy during a period when that policy
was a matter of intense and legitimate public debate. The intemperate tone of the
letter, for which the applicant has been found guilty of insolence under Charge 3,
does not transform criticism into conduct bringing the employer into disrepute.
[112] The arbitrator ’s finding on this charge is unreasonable for two independent
reasons. First, the finding that the applicant sent the letter to the media was
based on impermissible propensity reasoning and was not the only reasonable
inference available on the evidence. Second, even if the applicant had sent the
letter to the media, the content of the letter was not inherently likely to bring the
department into disrepute, and no evidence of actual reputational harm was led.
The arbitrator failed to apply the correct legal test and failed to consider material
evidence, including the context of legitimate public debate and the inconsistent
treatment of other employees. The conclusion reached is not one that a
reasonable decision-maker could reach on the evidence. The finding of guilt on
reasonable decision-maker could reach on the evidence. The finding of guilt on
charge 4 cannot stand.
Alternative 2 to charge 5
[113] Alternative 2 to Charge 5 reads as follows:
41
“It is alleged that you are guilty of misconduct in terms of Section 18(1)(g)
of the Act, in that on or about the period May to July 2020, you as
Principal of Heathfield High School misused your position at the Western
Cape Education Department and/or your position as the representative of
the Head of Department on the Heathfield School Governing Body, in that
you incited personnel, and/or learners, and/or the community not to attend
school or to report for duty during the Covid -19 pandemic via social media
platforms.”
[114] The applicant does not dispute his social media posts or their content. He
contends that his advocacy did not amount to incitement, that other principals
engaged in identical conduct without facing charges, and that his conduct was
protected by constitutional rights to freedom of expression and assembly under
sections 16 and 17 of the Constitution.
[115] The first respondent contends that the nature and intensity of the applicant ’s
social media activity, the SGB letter urging parents to keep children home, the
video filmed at Heathfield High in which teachers claimed the school was not
safe, and the subsequent zero attendance from 3 July to 24 July 2020 must be
seen cumulatively. The first respondent submits that parents relied on the
knowledge and guidance of the principal and followed his advice when he said it
was not safe for their children to attend sc hool. The arbitrator ’s finding that the
posts “speak for themselves” should not be disturbed.
[116] The arbitrator found: “On the charge that the applicant incited personnel and
learners in the community not to attend school or to report for duty during Covid
19 pandemic via social media platforms, the posts speak for themselves. By
indicating that you are the principal of a specific school as the person distributing
posts calling for the closure of schools, for parents not to send learners to school
and for educators to stay away from school/work amounts to an act of
incitement.”
42
[117] In Albion Services CC v Commission for Conciliation Mediation and Arbitration
and Others 14 (Albion), the Labour Court held that incitement requires proof that
the employee purposefully acted with the intention of influencing others to
commit misconduct. It is not sufficient that the employee expressed a view, even
a forceful or unpopular one. An inciter is “ one who reaches and seeks to
influence the mind of another to the commission of a crime. ”
15 Incitement is a
mental-state offence: it requires intention. Without proof of intention, there can be
no incitement.16
[118] The distinction between advocacy and incitement is constitutionally significant.
Section 16 of the Constitution protects the right to freedom of expression,
including the right to express unpopular or dissenting views. Section 17 protects
the right to assemble, demonstrate, picket, and present petitions peacefully.
Advocacy that falls within the protection of these constitutional rights cannot
constitute incitement, even if the advocacy is critical of the employer or
encourages collective action. The arbitrator did not engage with this
constitutional dimension at all.
[119] The applicant’s posts formed part of a broader, province- wide campaign in July
2020 in which teacher unions, parent bodies, and numerous principals publicly
expressed concern about the safety of reopening schools. Ms Hammond, the
WCED’s Director of Communications, acknowledged under cross -examination
that there was an ongoing debate at that time and that it was “contested terrain”.
She further acknowledged: “It was a pandemic.” In such a context, the applicant’s
posts cannot simply “ speak for themselves ”. The arbitrator was required to
determine whether the applicant intended to induce misconduct, not merely
whether he expressed a view that others might agree with. That enquiry was not
undertaken.
14 [2013] ZALCD 12 (12 May 2013).
15 S v Nkosiyana [1966] 4 All SA 456 (A) at 458.
14 [2013] ZALCD 12 (12 May 2013).
15 S v Nkosiyana [1966] 4 All SA 456 (A) at 458.
16 Economic Freedom Fighters and Another v Minister of Justice and Constitutional
Development and Another; Economic Freedom Fighters and Another v Minister of
Justice and Constitutional Development and Another (87638/2016) [2019] ZAGPPHC
253; [2019] 3 All SA 723 (GP); 2019 (2) SACR 297 (GP) (4 July 2019).
43
[120] Even accepting that the applicant ’s posts encouraged parents not to send
children to school and educators to stay away, the question remains whether this
constitutes incitement to commit misconduct within the meaning of Albion .
Keeping a child home from school during a pandemic, in circumstances where
safety concerns were genuine and widespread, is not self -evidently misconduct.
Educators who stayed away from school during the period in question were
exercising choices that were, at the time, the subject of legitimate debate and, in
some cases, protected by union agreements or government directives. The
arbitrator did not identify what misconduct the applicant was allegedly inciting
others to commit.
[121] The evidence of inconsistent treatment is material. Mr Stander confirmed that Mr
Wertheim, another principal, had made similar critical social media posts about
the Department ’s COVID- 19 policies. Mr Wertheim was not charged with
misconduct. Instead, the HOD requested Mr Stander to have a “ fireside chat ”
with Mr Wertheim about his posts. When asked directly why the applicant was
the only principal charged, Mr Stander could not answer. When it was put to Mr
Stander that it would not be fair if another principal had done exactly the same
things as the applicant but was not charged, Mr Stander agreed. The arbitrator
attempted to distinguish the applicant on the basis of his insolence towards the
HOD, but that relates to Charge 3, not Charge 5. Insolence cannot retroactively
convert constitutionally protected advocacy into incitement. The arbitrator ’s
reasoning collapses the distinction between the charges and fails to explain why
the applicant alone was singled out for conduct that was widespread and openly
tolerated.
[122] The first respondent contends that the applicant failed to discharge the duty to
provide sufficient information about other employees who allegedly received
preferential treatment, as required by Comed Health CC v National Bargaining
preferential treatment, as required by Comed Health CC v National Bargaining
Council for the Chemical Industry & Others
17. However, the applicant identified
the campaign in which other principals participated, and Mr Stander ’s evidence
17 (2012) 33 ILJ at para 10.
44
confirmed that Mr Wertheim was involved without being charged. The factual
foundation for the inconsistent treatment claim was established. The first
respondent’s attempt to distinguish the applicant on the basis of the cumulative
nature of his misconduct conflates the charges. The question under Charge 5 is
whether the applicant’s social media posts constituted incitement. The answer to
that question does not depend on whether the applicant was also guilty of
insolence under Charge 3 or non-compliance under Charge 2.
[123] There is an unresolved tension between this charge and Charge 2. Charge 2
proceeds on the premise that the applicant failed to ensure attendance,
suggesting that attendance was within his control , but he negligently failed to
secure it. Charge 5 proceeds on the premise that he intentionally induced non-
attendance, suggesting that the non- attendance was the direct result of his
deliberate conduct. The arbitrator did not reconcile these positions. The applicant
cannot simultaneously have failed to ensure attendance (negligence) and
intentionally caused non- attendance (incitement). The logical incoherence
between the charges further undermines the reasonableness of the arbitrator ’s
findings.
[124] The arbitrator ’s conclusion that the posts “speak for themselves ” does not
constitute adequate reasoning. Incitement is a mental -state offence: it requires
intention. The arbitrator did not identify any evidence of intention, did not
consider the constitutional protections applicable to the applicant ’s conduct, did
not engage with the broader context acknowledged by the Department ’s own
witnesses, did not identify what misconduct was allegedly incited, and did not
adequately address the inconsistent treatment of other principals who engaged in
identical conduct. The arbitrator further failed to reconcile the logical tension
between Charge 2 and Charge 5. The failure to undertake this analysis renders
between Charge 2 and Charge 5. The failure to undertake this analysis renders
the conclusion unreasonable. The finding on Charge 5 does not fall within the
band of decisions that a reasonable decision- maker could reach. The finding of
guilt on Charge 5 cannot stand.
45
Alternative to charge 6
[125] Alternative to charge 6 reads as follows:
“It is alleged that you are guilty of misconduct in terms of Section 18(1)(a)
in that you failed to comply with or contravened this Act, to be read with
the Public Service Regulations and/or the Western Cape Social Media
Policy and/or the Personnel Administration Measurers (“PAM”), in that
during June and July 2020, you as Principal of Heathfield High School,, on
social media platforms:
(i) Distributed pictures and/or posted videos on Facebook, and/or
(ii) Post or distribute statements and/or commentary; and/or
(iii) Irresponsibly criticise Government Policies .”
[126] The applicant was charged with breaching the Public Service Regulations, the
Western Cape Government Social Media Policy, and the Personnel
Administrative Measures (PAM). He contends that he was unaware of the social
media policy, that it was never communicated to him, and that other principals
engaged in similar social media activity without facing discipline.
[127] The arbitrator found that “some rules are so well known that there is no need for
them to be displayed or published” and that the applicant’s union had warned him
to stop posting.
[128] It is a foundational principle of fairness that an employee cannot be held to have
breached a policy of which he was unaware and which was not communicated to
him. The employer bears the onus of establishing that the policy was
communicated. The evidence on this point was unequivocal. Ms du Plessis, the
applicant’s immediate superior and Circuit Manager, testified that she had never
seen the social media policy. Ms Hammond, the WCED ’s Director of
Communications and the official responsible for the policy, m ade several critical
concessions under cross -examination: she never personally provided the policy
to the applicant; she did not know whether anyone else had done so; the policy
46
was not covered in induction training; and she was “ not sure” whether the cyber
wellness program had ever visited Heathfield High School. She further
acknowledged that at least two other principals had testified at the disciplinary
hearing that they had never seen the policy. On this evidence, the employer
failed to establish that the policy was ever communicated to the applicant.
[129] The arbitrator’s finding that “some rules are so well known” that communication is
unnecessary does not withstand scrutiny. This reasoning is circular and ignores
the specific evidence before him. The applicant testified that he was unaware of
the policy. His immediate superior testified that she had never seen it. At least
two other principals testified that they had never seen it. The official responsible
for the policy could not confirm that it had ever been disseminated to the
applicant or that Heathfield High School had ever been visited by the cyber
wellness program. In these circumstances, the conclusion that the rule was “ so
well known” that communication was unnecessary is not one that a reasonable
decision-maker could reach.
[130] The reliance on the union ’s warning does not cure the defect. A warning from a
union is not equivalent to communication of policy by the employer. The
employer cannot discharge its obligation to communicate its policies by relying
on a third party to do so. Moreover, the warning was issued after the conduct
giving rise to the charge. An employee cannot be disciplined for conduct that
occurred before any warning or instruction was given. The arbitrator’s reliance on
the union’s warning therefore misdirected the enquiry.
[131] The evidence of selective discipline applies with equal force to this charge. Other
principals engaged in similar social media activity during the same period. None
were charged. Mr Wertheim, another principal who made critical social media
posts about the Department ’s COVID- 19 policies, was dealt with by way of a
posts about the Department ’s COVID- 19 policies, was dealt with by way of a
“fireside chat” rather than disciplinary action. Ms Hammond conceded that only
the applicant was ever “on the radar”. Selective enforcement of a policy that was
not communicated to the applicant renders the charge fundamentally
47
unreasonable. The arbitrator failed to consider this material evidence, and his
conclusion does not fall within the band of decisions that a reasonable decision -
maker could reach. The finding of guilt on Charge 6 cannot stand.
Sanction
[132] This Court has found the applicant not guilty of Charge 2 (failure to comply with
instruction), not guilty of Alternative 2 to Charge 4 (bringing the WCED into
disrepute), not guilty of Alternative 2 to Charge 5 (incitement), and not guilty of
Alternative to Charge 6 (breach of social media policy). On Charge 3, this Court
has found the applicant guilty of insolence, but not of gross insubordination as
characterised by the arbitrator. The only misconduct established is a single act of
insolence; the use of intemperate language in the letter of 26 July 2020, written
during a period of extraordinary stress and uncertainty. The question is whether
dismissal was an appropriate sanction for this misconduct.
[133] The evidence of selective discipline, considered cumulatively across the charges,
further undermines the proportionality of dismissal. Multiple principals
participated in the same campaign, expressed similar views on social media, or
engaged in comparable conduct, yet none were charged. Some were dealt with
informally through “fireside chats”. The WCED’s own Director of Communications
conceded that only the applicant was “on the radar”. The arbitrator’s finding that
there was “not an iota of evidence” of unfair targeting is irreconcilable with this
evidence. This selective enforcement of discipline, in circumstances where the
applicant’s immediate superiors testified that they could continue working with
him, weighs heavily against the conclusion that dismissal was an appropriate or
fair sanction.
[134] The first respondent contends that the applicant ’s conduct destroyed the trust
relationship, relying on Woolworths (Pty) Ltd v Mabija and Others
18
(Woolworths), where the Court held that in egregious cases the nature of the
18
(Woolworths), where the Court held that in egregious cases the nature of the
misconduct may speak for itself. Reference was also made to Algoa Bus
18 [2016] ZALAC 5; [2016] 6 BLLR 568 (LAC); (2016) 37 ILJ 1380 (LAC) at para 21.
48
Company (Pty) Ltd v TASWU obo Mzawi and Others 19 where the Labour Appeal
Court held:
“Secondly, and more fundamentally, the Labour Court erred to the extent
that it considered that the arbitrator had committed a reviewable
irregularity by deciding to uphold the employee’s dismissal, in the absence
of specific and discrete evidence concerning a breakdown of trust or
deterioration in the employment relationship. The determination of the
fairness or otherwise of a dismissal involves a moral or value judgment, to
be made by the presiding arbitrator, after considering all of the relevant
factors and circumstances. Sidumo & another v Rustenburg Platinum
Mines & others (Sidumo) specifically enjoins arbitrators to “consider all
relevant circumstances” (own emphasis added). The absence of any
specific evidence adduced in an arbitration hearing regarding a
breakdown or deterioration in the employment relationship is thus not a
basis to set aside an arbitrator’s decision to uphold a decision to dismiss.
As this Court has observed, the existence of serious misconduct can in
itself lead to a finding that a dismissal should be upheld, without evidence
of any breakdown in trust. Indeed, the CCMA Guidelines on Misconduct
Arbitration (Guidelines) repeat the injunction to make a value judgment as
to the fairness of the employer’s decision to dismiss, taking into account
all of the relevant circumstances. To the extent that the Labour Court held
that it was necessary for the appellant to lead such evidence as a
necessary condition for a finding of unfair dismissal, that is not the law. In
National Union of Metal Workers of South Africa v Commission for
Conciliation, Mediation and Arbitration and others , the Labour Court
provides a useful summary of developments post -Edcon Ltd v Pillemer
NO and others . Both this Court and the Labour Court have consistently
held that there is no general obligation on an employer to lead evidence
held that there is no general obligation on an employer to lead evidence
as to the appropriateness of dismissal as a sanction or any breakdown in
19 [2024] ZALAC 42; [2024] 12 BLLR 1224 (LAC); (2025) 46 ILJ 89 (LAC) at para 14.
49
the trust relationship, nor is there some limited category, as the Labour
Court appears to suggest, in which an employer may be relieved of such
an obligation (the Labour Court gave the examples of assault and
dishonesty). Any deterioration in the trust relationship between employer
and employee may be a relevant or even significant factor in the
determination of the fairness or otherwise of a dismissal, but it is not a
determinative factor. More often than not, the evidence of the nature and
extent of the employee’s misconduct will be sufficient for an arbitrator to
exercise the required value judgment on the fairness of dismissal as a
sanction…” (footnotes omitted)
[135] However, that principle applies to cases of calculated dishonesty or gross
misconduct. Insolence, while regrettable, is not in the same category. The
evidence does not support an irretrievable breakdown of trust. Ms du Plessis and
Mr Stander, who worked most closely with the applicant, did not support the view
that trust was broken. The applicant was not suspended during the two years
between being charged and dismissed; he continued to render services
throughout. His performance rating improved from 2 to 3 during 2020. The matric
pass rate at Heathfield High School improved from 76% to 84%. The Schools
Evaluation Authority’s Chief Evaluator, Ms Karen Bydell, described the applicant
as “very professional” and found the school compliant with COVID -19 health and
safety regulations when evaluated on 21 July 2020. The Commissioner himself
observed during Ms Bydell ’s testimony that he saw “ nothing controversial in this
report that is prejudicial to the applicant.”
[136] Mr Schreuder conceded under cross -examination that others might have a
different perspective on the trust breakdown, but maintained that “ they are not
the decision makers. ” This concession reveals the flaw in the reasoning: the
decision-maker who found trust had broken down had minimal direct interaction
decision-maker who found trust had broken down had minimal direct interaction
with the applicant, while those who worked most closely with him maintained the
relationship was viable. Significantly, Mr Schreuder is no longer the Head of
Department. Whatever personal animosity may have existed between the
50
applicant and Mr Schreuder is no longer a barrier to the restoration of the
employment relationship.
[137] The MEC, after upholding the findings on Charges 2 to 6, offered the applicant a
demotion to a Head of Department position at one of three schools as an
alternative to dismissal. The applicant declined the offer and was dismissed. The
first respondent characterises the offer as an act of grace; the applicant contends
that it demonstrates that the employer did not genuinely believe that the trust
relationship had irretrievably broken down.
[138] The offer of demotion is not merely a mitigating factor. It is logically incompatible
with the assertion that continued employment was intolerable. An employer who
genuinely believes that the trust relationship has collapsed does not offer
continued employment. An employer who asserts that an employee cannot be
trusted does not propose to place that employee in a senior post supervising
educators and teaching learners. The offer of demotion reflects the employer ’s
actual belief at the time, i.e., that the applicant could still be trusted within the
education system. That belief, expressed through conduct rather than rhetoric,
materially undermines the trust -breakdown rationale advanced in these
proceedings.
[139] This Court has already noted that the applicant was never suspended during the
two-year disciplinary process, and that both his immediate superiors , the District
Director, Mr Stander, and the Circuit Manager, Ms du Plessis , testified that they
could continue working with him and did not support his dismissal. The demotion
offer must be viewed alongside this evidence. Just as the failure to suspend an
employee may indicate that the employer did not regard continued presence in
the workplace as intolerable, s o too does an offer of continued employment at a
senior level indicate that the employer did not consider the trust relationship
irreparably broken.
irreparably broken.
[140] The applicant’s decision to decline the demotion does not disentitle him to relief.
An employee is not obliged to accept a lesser position to avoid dismissal where
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the dismissal itself is unfair. The question before this Court is not whether the
applicant should have accepted the demotion, but whether dismissal was a fair
and proportionate sanction in all the circumstances. The offer of demotion is
powerful evidence that it was not.
[141] Dismissal for a single act of insolence, committed during extraordinary
circumstances, where the employee has a lengthy service record, where
progressive discipline was not considered, where comparable misconduct by
others attracted only informal correction or no action at all, where the employee’s
performance improved during the year in question, where those who worked
most closely with him did not regard trust as broken, and where the employer
itself offered continued employment in a senior position, is not a sanction that a
reasonable decision- maker could impose. The arbitrator ’s endorsement of
dismissal does not fall within the band of reasonable decisions. The sanction of
dismissal must be set aside. The finding that dismissal was not a reasonable
sanction necessarily triggers the primary remedy of reinstatement under section
193(2) of the LRA, unless one of the statutory exceptions applies.
[142] Having found that dismissal falls outside the band of reasonable sanctions for the
misconduct established, this Court must determine what sanction a reasonable
decision-maker would have imposed. The applicant was found guilty of a single
act of insolence, the use of intemperate language in a letter written during a
period of extraordinary stress. Insolence of this nature, unaccompanied by
defiance or refusal to obey instructions, is ordinarily addressed through corrective
rather than punitive measures in line with the principles articulated in Palluci. He
has no prior disciplinary record. Progressive discipline was not considered.
Comparable misconduct by other employees attracted only informal correction. In
these circumstances, a final written warning woul d have been the appropriate
these circumstances, a final written warning woul d have been the appropriate
and proportionate sanction. This Court therefore substitutes the sanction of
dismissal with a final written warning, which is the sanction that a reasonable
decision-maker would have imposed. This substituted sanction must be read
together with the reinstatement order that follows.
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The Appropriate Relief
[143] The first respondent did not lead evidence at the arbitration on the issue of
remedy, nor did it address whether reinstatement would be impracticable. In
these circumstances, the applicant’s claim for reinstatement must be determined
on the evidence before this Court.
[144] The applicant seeks an order reviewing and setting aside the arbitration award,
substituting the sanction of dismissal with an appropriate sanction, and directing
the first respondent to reinstate him as Principal of Heathfield High School on the
same terms and conditions of employment, with back -pay from 20 May 2022.
The first respondent contends that the application should be dismissed.
[145] Section 158(1)(g) of the LRA empowers this Court to make any order it considers
appropriate. In determining whether to remit the matter for fresh arbitration or to
substitute its own decision, relevant considerations include the length of time
since dismissal, the prejudice to the parties of further delay, the extent to which
the factual disputes have been ventilated, and the interests of finality (Palluci).
[146] The applicant was dismissed in May 2022. More than three years have now
passed. A remittal for fresh arbitration would cause further delay in
circumstances where the applicant has already been without employment and
income for an extended period. The evidence was fully ventilated during the
arbitration and is properly before this Court on review. The interests of justice
favour finality. This Court is satisfied that it is appropriate to substitute its own
decision.
[147] Section 193(2) of the LRA provides that the Labour Court must order
reinstatement unless one of the statutory exceptions applies: (a) the employee
does not wish to be reinstated; (b) the circumstances surrounding the dismissal
render continued employment intolerable; (c) reinstatement is not reasonably
practicable; or (d) the dismissal is unfair only for want of procedure.
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[148] None of these exceptions apply. The applicant seeks reinstatement and has
consistently done so. The first respondent asserted in its answering affidavit that
reinstatement to Heathfield High School would be inappropriate but led no
evidence at arbitration to support this contention. The legal burden of proving
intolerability or impracticability rests on the employer. The first respondent has
not discharged this burden.
[149] Significantly, Mr Schreuder is no longer the Head of Department. Whatever
personal animosity may have existed between him and the applicant is no longer
a barrier to reinstatement. The applicant ’s immediate superiors, Ms du Plessis
and Mr Stander, testified that they could continue working with him. There is no
evidence that reinstatement to Heathfield High School would be impracticable or
intolerable. In light of this Court’s finding that dismissal was not a reasonable
sanction and that a final written war ning is the appropriate sanction,
reinstatement is the remedy mandated by section 193(2) of the LRA.
[150] Where reinstatement is ordered, section 193(1)(a) of the LRA requires the
employer to pay the employee the remuneration he would have earned had he
not been dismissed. This ordinarily entails back -pay from the date of dismissal to
the date of reinstatement.
[151] The applicant was dismissed on 20 May 2022. He is therefore entitled to
back-pay from that date, subject to any deduction for income earned from
alternative employment during the period of dismissal, as required by section
193(1)(a).
[152] The issue of mitigation of loss was not addressed by the parties. Making an order
for full retrospective back -pay without accounting for possible alternative
earnings may be unduly harsh to the first respondent, while the applicant should
not be prejudiced by the first respondent’s failure to raise or prove mitigation. In
these circumstances, the first respondent will be afforded an opportunity, within
these circumstances, the first respondent will be afforded an opportunity, within
30 days of this order, to apply for a determination of any amounts to be deducted
in respect of income ear ned by the applicant during the period of dismissal. If no
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such application is made within the stipulated period, full back -pay will be
payable.
Costs
[153] The general principle in labour matters is that costs do not follow the result.
Section 162 of the LRA provides that this Court may make an order for costs
according to the requirements of the law and fairness.
[154] The applicant has been successful. He was dismissed more than three years ago
and has had to pursue litigation to vindicate his rights. The review was opposed
on all grounds. However, the applicant’s own conduct contributed to the dispute.
The language used in the 26 July 2020 letter was intemperate and ill -advised.
While it did not justify dismissal, it was not conduct befitting a senior educator. In
these circumstances, the requirements of law and fairness do not justify a
departure from the general principle. No order as to costs will be made.
Order
[155] In the result, the following order is made:
1. The arbitration award dated 19 June 2023 is reviewed and set aside.
2. The finding of the arbitrator that dismissal was an appropriate sanction is
substituted with a finding that a final written warning is the appropriate
sanction for the misconduct established. The duration of the final written
warning will be of effect for twelve months from the date of the applicant’s
reinstatement.
3. The first respondent is directed to reinstate the applicant to the position of
Principal of Heathfield High School, on the same terms and conditions of
employment that existed at the time of his dismissal, with effect from 2
February 2026. The date of reinstatement does not affect the
retrospectivity of the reinstatement.
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4. The reinstatement is retrospective, and the first respondent is ordered to
pay the applicant the remuneration he would have earned from 20 May
2022 to the date of reinstatement, subject to paragraph 5 below.
5. The first respondent may, within 30 days of the date of this order, apply on
affidavit for a determination of any amounts to be deducted from the
back-pay in respect of income earned by the applicant from alternative
employment during the period of dismissal. If no such application is made
within the stipulated period, full back-pay shall be payable.
6. The back-pay must be paid within 30 days from the date of reinstatement,
alternatively, if an application is made in terms of paragraph 5, the back -
pay must be paid within 30 days of the Court’s judgment in the application.
7. No order is made as to costs.
_____________________________
C. de Kock
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: V Seymour from Lionel Cay Attorneys
For the First Respondent: C Kahanovitz SC and J Williams
Instructed by: State Attorney