Brief Summary

Labour Law — Dismissal — Substantive fairness — Appellants dismissed for participating in unauthorized meeting and failing to obey lawful instruction — Labour Court upholding arbitration award finding dismissal substantively fair — Appeal against dismissal dismissed as appellants failed to demonstrate that the Commissioner’s decision was unreasonable or that the Labour Court erred in its findings.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were an appeal to the Labour Appeal Court against the whole of a judgment and order of the Labour Court dated 4 July 2024. The Labour Court had dismissed an application to review and set aside an arbitration award issued under the auspices of the Motor Industries Bargaining Council (MIBCO).

The appellants were five dismissed employees, namely Thulani Dladla, Thabang Mogaswa, Phenyo Hlongwane, Tshililo Magadani, and Tshepiso Mabusela. The respondents were the Motor Industries Bargaining Council Dispute Resolution Centre, Mr Diale Ntsoane N.O. (the commissioner who issued the arbitration award), and Feltex Automotive (Pty) Ltd (the employer).

The procedural history was that the appellants were dismissed following an internal disciplinary enquiry on two counts of misconduct. They referred an unfair dismissal dispute to MIBCO, where the commissioner found the dismissals substantively fair. The appellants then brought a review application in the Labour Court, which was dismissed. The present appeal challenged the Labour Court’s refusal to set aside the award.

The dispute concerned the substantive fairness of dismissal for (i) participation in an unauthorised meeting characterised in the employer’s disciplinary rules as “riotous behaviour”, and (ii) failure to obey a lawful instruction and insubordination, together with the appropriateness of dismissal as a sanction.

Material Facts

It was largely common cause that the appellants were employed in the employer’s Grammar Line department, which produced headrests for BMW vehicles. In early 2018 BMW cancelled an order, causing the employer to contemplate closing the Grammar department and potentially retrenching staff. The employer issued notices in terms of section 189(3) of the Labour Relations Act 66 of 1995 and consulted with NUMSA, the appellants’ union.

By 7 March 2018, the consultations resulted in the employer deciding not to retrench. Instead, the employer undertook to absorb the affected employees, including the appellants, into other departments (notably the Fehrer Department) on the same terms and conditions, with on-the-job training. A list confirming this arrangement was provided to NUMSA, which undertook to communicate the outcome to its members.

On the morning of 12 March 2018, the appellants and two other employees congregated in the employer’s canteen. When asked by their supervisor, Mr Ntladi, why they were in the canteen, they stated they were waiting for the union organiser, Mr Mike Futshane, to discuss possible retrenchments. Management indicated that Grammar Line employees were being trained in other areas of the factory, and instructed the appellants to return to their workstations. The appellants refused, stating they would not move until they had met Mr Futshane. The appellants did not indicate at the time that they were off duty.

The employer issued two written ultimatums. The first required employees to return to work by 11:15, warning that they were participating in an “illegal strike”. The second ultimatum (issued before 12:00) reiterated the instruction to return to work and added that employees not back at work would be required to leave the premises or be escorted out.

It was common cause that the appellants did not comply with either ultimatum. They were suspended and charged with misconduct. The charges were framed as participation in “riotous behaviour” by taking part in an unauthorised meeting on the premises, and failure to obey a lawful instruction and insubordination by not returning to duty at Fehrer Rosslyn despite the ultimatums. After a disciplinary enquiry the appellants were found guilty on both charges and dismissed; an internal appeal failed.

At arbitration, the appellants’ principal defence on the second charge was that they were not rostered to work and thus did not have to return to workstations. The employer disputed this and contended that the appellants were allocated to a shift for on-the-job training. The Labour Court recorded that the “not rostered” contention was rejected as lacking credibility and found the probabilities favoured the employer’s version that the appellants were rostered.

A factual dispute also existed concerning whether a union meeting was authorised or arranged with management for 12 March 2018. The employer denied knowledge of any such meeting and relied on evidence about the standard process for organising union meetings on site. The appellants contended that the gathering was linked to a planned meeting with the union organiser, although he did not arrive.

Legal Issues

The central legal questions were whether the Labour Court was correct in concluding that the arbitration award was one that a reasonable decision-maker could reach under the Sidumo/Gold Fields review standard, and thus whether the commissioner’s findings on guilt and sanction were reviewable.

Within that overall enquiry, the appeal raised issues concerning the application of law to fact and the evaluation of the reasonableness of the commissioner’s conclusions, including whether:

The commissioner (and Labour Court) correctly found the appellants guilty of Charge 1, namely participation in “riotous behaviour”, where the employer’s disciplinary rules defined that concept to include an unauthorised meeting of more than three people on company property.

The commissioner (and Labour Court) correctly found the appellants guilty of Charge 2, namely failure to obey a lawful instruction and insubordination, and in particular whether the charge was impermissibly widened from a failure to return to duty to include refusal to leave the canteen or premises.

If guilt was established, whether dismissal was an appropriate sanction, bearing in mind the Code of Good Practice: Dismissal (Schedule 8 to the LRA) and the seriousness required for insubordination to justify dismissal.

Court’s Reasoning

The Labour Appeal Court approached the matter through the established review-and-appeal framework. It emphasised that the appellate enquiry was whether the Labour Court was correct in holding that the commissioner’s award met the constitutional standard of reasonableness, framed as whether the decision was one that a reasonable decision-maker could not reach. The Court further relied on the principle that a review requires a material irregularity or misdirection that leads to an unreasonable outcome, and that not every error of fact or law warrants interference.

On Charge 1, the Court noted that the employer’s disciplinary rules defined “riotous behaviour” to include conducting an unauthorised meeting on company property, and that a “meeting” was defined as a gathering of more than three people. On the appellants’ own version they gathered in the canteen with at least two other colleagues while waiting for the union organiser. The Court treated this as meeting the disciplinary-rule definition of a meeting.

The appellants’ case was that the meeting had been arranged with management, and that the Labour Court had allegedly substituted the commissioner’s finding by rejecting that. The Court rejected this characterisation, holding that the commissioner’s reference to a “planned” meeting related to the appellants’ belief, while the commissioner had nonetheless found that the gathering was unauthorised. The Court considered the Labour Court’s analysis of probabilities to be sound, including the considerations that the union had already been informed that retrenchments were off the table, that the union organiser did not testify to corroborate the appellants’ version, and that shop stewards on site were unaware of any meeting. The evidence of management (including Mr Ntladi and the explanation of the usual process for arranging meetings) supported the conclusion that no permission had been given. The Court held that, given the disciplinary-rule definition, the conduct fell within “riotous behaviour” without requiring violence or disturbance in the ordinary sense of that word.

The Court also addressed the appellants’ contention that they were unaware the meeting was unauthorised. It reasoned that this did not constitute a complete defence because, as employees and union members, they ought reasonably to have known the proper channels for arranging union meetings; the objective fact remained that the meeting was not authorised in accordance with the employer’s procedures.

On Charge 2, the Court dealt with the argument that the commissioner and Labour Court had impermissibly expanded the charge beyond its wording. The Court characterised that complaint as unduly technical and treated the instruction to “return to work” as the functional equivalent of requiring the employees to leave the canteen and report to their workstations, since the canteen was not their place of work. The Court relied on the content of the ultimatums, particularly the second ultimatum, which made explicit that failure to return to work would result in the employees being asked to leave the premises.

In addressing the “widening of the charge” point, the Court applied the principle that disciplinary charges should not be approached with undue formalism, focusing on whether the employee had adequate notice of the conduct alleged and whether any prejudice resulted from the way the misconduct was categorised. On the Court’s reading, the essence of the misconduct—refusal to obey lawful instructions and insubordination—was fully ventilated, and the appellants were not prejudiced by the commissioner’s treatment of the instruction as including leaving the canteen and reporting to work.

The Court rejected the appellants’ defence that they could not comply with the ultimatums because they had not been allocated a place to work or were not rostered. It emphasised that this roster defence was not raised at the disciplinary enquiry and emerged for the first time at arbitration; further, the appellants had not told management or shop stewards on 12 March that they were off duty, instead asserting that they were waiting for the union organiser and would not return to work. The Court accepted the Labour Court’s assessment that the defence lacked credibility and was not properly put to management witnesses in cross-examination.

The Court also reasoned that the duty to obey lawful and reasonable instructions was not confined to an employee’s shift times but extended to conduct on the employer’s premises, and that the instruction to report for work (or leave the premises) was lawful and reasonable in the context of redeployment and training following the closure of the Grammar Line.

On the onus point, the Court reiterated that while the employer bears the onus to prove fairness under section 192 of the LRA, once a prima facie case is established there is an evidential burden on employees to advance a credible alternative version. The Court found that the employer had led evidence of the instructions and the appellants’ refusal, and that the appellants’ roster contention was not substantiated.

On sanction, the Court considered the Code of Good Practice: Dismissal (Schedule 8 to the LRA), which recognises gross insubordination as potentially justifying dismissal. The Court viewed the appellants’ misconduct as severe because it involved a concerted, sustained refusal to comply with instructions, persistence over several hours despite written ultimatums, and conduct that challenged management authority at a sensitive time when the employer was implementing redeployment to avoid retrenchment. It considered the trust relationship to have been seriously damaged, and held that dismissal fell within the band of reasonableness, such that the commissioner’s decision not to interfere with the sanction (and the Labour Court’s confirmation of that outcome) was not reviewable.

Outcome and Relief

The Labour Appeal Court dismissed the appeal and upheld the Labour Court’s order which had dismissed the review application. As a result, the arbitration award finding the dismissals substantively fair remained intact, and the appellants were not reinstated.

No order as to costs was made in the appeal.

Cases Cited

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC).

Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC).

Head of the Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC).

EOH Abantu (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Another 2008 7 BLLR 651 (LC); (2008) 29 ILJ 2588 (LC).

Exxaro Coal Mpumalanga Ltd v Commission for Conciliation, Mediation and Arbitration and Others (unreported, case no JR269/11).

Independent Risk Distributors SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR 1906/19) [2022] ZALCJHB 282 (11 October 2022).

Legislation Cited

Labour Relations Act 66 of 1995 (as amended), including section 189(3) and section 192.

Code of Good Practice: Dismissal (Schedule 8 to the Labour Relations Act 66 of 1995).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Court held that the Labour Court correctly applied the Sidumo/Gold Fields reasonableness standard and was correct to conclude that the commissioner’s award was not one that a reasonable decision-maker could not reach.

It held further that the commissioner’s findings that the appellants were guilty of participating in an unauthorised meeting (as defined by the employer’s disciplinary rules as “riotous behaviour”) and guilty of failing to obey lawful instructions and acting insubordinately were reasonable on the evidential material accepted by the Labour Court.

It also held that dismissal was a reasonable sanction in the circumstances, given the sustained and collective nature of the defiance, the ignoring of written ultimatums, and the damage to the trust relationship. The appeal was therefore dismissed, with no order as to costs.

LEGAL PRINCIPLES

The constitutional standard for review of arbitration awards in dismissal disputes requires the reviewing court to determine whether the decision is one that a reasonable decision-maker could not reach, and appellate scrutiny of a review judgment proceeds by assessing whether the review court was correct in law in applying that standard.

A review will succeed only where an irregularity or misdirection is material in the sense that it produces an unreasonable outcome; not every factual or legal error justifies interference with an award.

In assessing workplace discipline, courts and arbitrators should avoid an unduly formalistic or technical approach to the formulation of disciplinary charges; it is generally sufficient that the employee had adequate notice of the misconduct alleged and suffered no prejudice in the conduct of the defence, and the categorisation of misconduct is of lesser importance than the substance of the alleged conduct.

Employees are required to obey lawful and reasonable instructions, and the legitimacy of an instruction does not depend on whether it falls within the employee’s job description; refusal to comply with a lawful instruction may constitute misconduct, including insubordination.

For insubordination to justify dismissal, it must be sufficiently serious (described in the judgment with reference to authority as requiring conduct that is serious, persistent, and deliberate), and sustained defiance in the face of warnings and ultimatums may support a finding that dismissal is an appropriate sanction.

Dladla and Others v Motor Industries Bargaining Council and Others (JA99/2024) [2026] ZALAC 4 (26 January 2026)