THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case no: D 31/2021
In the matter between:
PHUMALANI DUBE Applicant
and
SASKO SHAKASKRAAL BAKERY
A DIVISION OF PIONEER FOODS GROUP LIMITED Respondent
Heard: 24, 25, 26 November 2025
Delivered: 18 February 2026
JUDGMENT
WHITCHER J
[1] This referral concerns whether t he applicant’s dismissal by the respondent for
participating in an unprotected strike and for gross insubordination and/or
gross insolence was substantively unfair.
Common cause facts: pretrial minute
[2] The respondent mass produces a perishable product that requires delivery on
the same day and an uninterrupted 24-hour operation. It therefore operates on
a three- shift system , the first of which commences at 06h00 on Monday
morning, and the last of which ends at 06h00 on Saturday morning. On
weekends, a 12-hour shift is in operation running from 06h00 on the Saturday
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
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and the last of which ends at 06h00 the following Monday morning. The
applicant was employed as an oven-feeder operator.
[3] On 27 June 2020, the respondent ’s bakery manager, Mr Aupa Mofokeng
received a letter of demand via the shopstewards. It was purportedly endorsed
by 240 employees. The applicant is one of the signatories.
[4] The demand called for the removal within 48 hours of the Safety Manager, the
HOD of Dispatch, the HR Manager , the Chief Operations Manager and the
General Manager . The petition alleged in general and vague terms that
workers are treated like slaves and managers use vulgar language when they
address workers.
[5] Mofokeng met with the shopstewards to obtain context in relation to the
grievance, but they told him to address the workers directly. Management
therefore contacted their union, A FADWU. The applicant was a member of
AFADWU.
[6] On 1 July 2020, management met with an official from AFADWU. It was
agreed that the employees would use the respondent’s grievance procedure
to lodge specific alleged grievances, and the forms for that were provided .
That was not done.
[7] Instead, on Thursday, 2 July 2020 at 03:00, about 60 employees embarked on
an unprotected strike and gather ed in the canteen. These employees would
have ordinarily ended their shifts at 06h00.
[8] The respondent repeatedly instructed the employees in the canteen to return
to work , but they did not heed the ultimatums. Instead, they moved to and
gathered in the yard/parking area of the premises , where they were again
instructed to return to work. The striking employees eventually dispersed at
about 08h30/08h40.
[9] Fifty-three employees were issued with final written warnings for participati ng
in the unprotected strike. The applicant and the shopstewards , however, were
issued with separate notices to attend disciplinary hearings where in addition
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to the charge of participating in an unprotected strike, they were charged with
further allegations of misconduct.
The applicant’s conduct
[10] The applicant was charged with participating in an unp rotected strike and
gross insubordination and/or gross insolence.
[11] It was undisputed that the applicant, who was due to commence his shift at
06h00, joined the striking employees in the canteen after he arrived at work.
The exact time he did so 1 and how he ended up there is immaterial in the
wider scheme of things, as will become apparent.
[12] The applicant may not have instigated, and participated in the decision at 3am
to embark on the strike, however , the evidence of Mr Mofokeng and the HR
Manager, Mr Lebohang Letsoha , backed in part by the CCTV footage viewed
in court established that he actively acted in furtherance of the strike, actively
associated himself with the purpose of the strike - in fact more so than most of
the strikers – and, in the process acted in a disrespectful and insolent manner
to management who came to address the strikers in the canteen.
[13] In this regard, the said evidence established that:
13.1 When Mr Mofokeng returned to the canteen at 7am with Mr Letsoha to
address the strikers, the applicant was in the canteen with the strikers.
13.2 When Mofokeng and Letsoha entered the canteen, the employees sang
and danced but they eventually settled down for management to
address them. The applicant, however, co ntinued singing and dancing,
moving around them ; chanting “They must leave the place” and “All
must go” – clearly echoing the demand in the petition. At one stage he
stated: “Go back to Lesotho”, an obvious reference to Mr Letsoha.
1 The charge does not suggest this at all and the evidence of the respondent’s witness, Dladha that he saw the
applicant at 4am in the plant was unreliable.
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13.3 While Mr Mofokeng was addressing the employees, the applicant
positioned himself next to the shopstewards saying: “Tell them they
must go”.
13.4 Crucially, the applicant himself revealed that he asked Mr Mofokeng
how far management had gone with the grievance and in reply to
Mofokeng’s response, he addressed Mr Mofokeng as follows: “you are
not trusted – you are a liar”.
13.5 Under cross -examination, the applicant denied he had made pointing
gestures at Mr Mofokeng and Mr Letsoha while he was dancing. He
implausible claimed that it was part of the dance.
13.6 The applicant joined the strikers in the yard after they left the canteen,
and here he also was not a passive spectator but continued his show of
support for the strike by singing and dancing.
[14] Mr Mofokeng and Mr Letsoha testified that as management they felt
disrespected in front of the employees. They reasonably s ubmitted that even
where parties have a workplace dispute, there is no need to address
management in a disrespectful and insulting manner. While the law allows for
a degree of flexibility and "relaxed" rules regarding respect during collective
bargaining, this does not permit insolence even from a shop steward. This
court has held that the right to represent employees does not give
representatives free reign to behave rudely and insolently. In Msunduzi
Municipality v Hoskins, the dismissal of a representati ve for being rude,
sarcastic, and insulting to a manager was upheld as the conduct was deemed
to have broken the trust relationship.
[15] For all the reasons set out above, the dismissal of the applicant was
substantively fair, and the referral is dismissed with no order as to costs.
_____________________
B Whitcher
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Norton Rose Fulbright South Africa Inc
For the Respondent: Ngubelanga Attorneys Inc