THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
C ase No: JA 32/2025
In the matter between:
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTIONS WORKERS UNION (AMCU)
On behalf of OTSHEPENG KGOTLANG Appellant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
BACA TEMBINKOSI N.O Second Respondent
SIYANDA BAKGATLA PLATINUM MINE Third Respondent
Heard: 20 November 2025
Delivered: 13 March 2026
Coram: Van Niekerk JA, Chetty et Kganyago AJJA
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
JUDGMENT
CHETTY, AJA
Introduction
[1] This appeal lies against the decision of the Labour Court (Manchu AJ), with leave
being granted by the court a quo in respect of its decision of 23 February 2025
dismissing the review application in which the di smissal of the appellant was
confirmed as being substantively fair. The issue giving rise to the dismissal of the
employee, Mr Otshepeng Kgotlang, stems from his refusal to obey an instruction
from his superiors to carry out his underground duties as a min er. The employee
was at the time of his dismissal a part-time shop steward and branch secretary of
the Association of Mineworkers and Construction Union (AMCU) at the Siyanda
Bakgatla Platinum Mine (the mine). He was charged with gross insubordination
and clocking fraud, and after a procedurally fair disciplinary hearing, he was
found guilty and dismissed. The application to review the fairness of his dismissal
was dismissed, with the Labour Court concluding that the finding of the arbitrat or
was not open to interference on either count . It upheld his dismissal as an
appropriate sanction after considering the totality of the evidence.
Background
[2] A brief background is that Mr Kgotlang commenced employment at the mine in
January 2007, progressing to become a team leader responsible for supervising
a crew of miners. In 2019 he was elected as an AMCU shop steward and
became AMCU’s branch secretary. By virtue of his role as a shop steward, the
mine contended that he would have been responsible for representing
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employees who were AMCU members at grievance and disciplinary proceedings.
In so doing, he would have been au fait with the company policies and
procedures, as well as the terms of collective agreements concluded between
the union and the mine.
[3] As will appear from what follows, Mr Kgotlang denied knowledge of the
applicable rules at the mine, particularly the terms of a r ecognition agreement
between the mine and recognised unions, including AMCU , that regulated the
role of part -time sho p stewards li ke Mr Kgotlang. In addition, he denied
knowledge of a memorandum addressed to the trade union branch chairpersons
and part -time shop stewards dated 8 January 2020. This memorandum
addressed the problem, from the mine’s perspective, of shop stewards not being
at their places of work , unless excused by management. The mine contended
that Mr Kgotlang refused to comply with numerous requests by his supervisors to
perform his underground duties , which refusal was persistent and in breach of
the relevant recognition agreements as well as a recent instruction which clarified
the role of part-time shop stewards.
[4] The terms of the 2009 Employee Relations Recognition Agreement (ERRA)
(recognition agreement) concluded between the mine and various trade unions
are relevant to the charges against Mr Kgotlang. Of particular importance are the
following:
‘(i) the Part time shop stewards represent the trade union members during
deliberations with Management.
(ii) the recognition of Part Time Shop Stewards is subject to the condition
that Trade Union activities will not interfere with their work or with the
work of other employees, provided that Part Time Shop Steward will,
within reasonable limits, be permitted by his supervisor to attend to
employees' problems and grievances during working hours.
(iii) it is the responsibility of each Part Time Shop Steward to promote sound
industrial relations by, inter alia, investigating any problems and
4
grievances brought to his/her attention thoroughly and submitting full
details to the supervisor or manager concerned.
(iv) Part Time Shop Stewards are expected to be conversant with the
provisions of the Conditions of Service and with any Agreements
concluded between Anglo Platinum and the Trade Unions; and
(v) the Trade Union parties undertake to ensure that their Part Time Shop
Stewards will comply with the provisions of the Agreement and will
endeavour to take such reasonable steps as may be necessary to
remedy any material breach of the Agreement or any actions which may
be contrary to the spirit of the Agreement.’
[5] The recognition agreement accords a particular status to a shop steward in the
context of their duty to represent employees in their interaction with
management. Generally, this would take the form of representation at
grievances and disciplinary enquiries. A fair reading of these provisions further
requires shop stewards to be ‘ conversant’ with the company’s policies and
procedures. Absent such knowledge, their ability to adequately represent
employees would be severely undermined.
[6] It became necessary on 8 January 2020 for the mine to issue a further
communiqué to all shop stewards clarify ing the provisions of the recognition
agreement. According to the respondent, t he memorandum titled ‘Reporting at
Work areas by al l Shop Stewards’ was intended to address management’s
observation that most part -time shop stewards were not reporting for duty at the
places where they should be (underground) but were mainly noticed to be on the
surface.
[7] The contents of the memorandum read as follows:
‘Dear Colleagues
Kindly be informed that Management has observed and taken note of the fact
that most of the Part-time Shop Stewards are not reporting to their working areas
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but are instead seen more often on surface rather than where they are supposed
to be performing their work.
Management herewith wishes to advise and inform all Shop Stewards to report to
their working areas with effect from the 8th January 2020 going forward.
The below extract from ERRA (Employee Relations Recognition Agreement) is
very clear and MUST be complied with by all the Shop Stewards henceforth.
The recognition of Part Time Shop Stewards is subject to the condition that Trade
Union activities will not interfere with their work or work of other employees,
provided that a Part Time Shop Steward will, within reasonable limits, be
permitted by his supervisor to attend to employees' problems and grievances
during working hours.
All Part Time Shop Stewards must always report at their places of work except
when they are authorized through formal releases.
HR Coordinators and ER Officers must ensure that the above is applied with
immediate effect.’
[8] The memorandum reinforced management’s view that part -time shop stewards
should be underground when not undertaking trade union business, and only
after this has been sanctioned by a supervisor. Further, the memorandum directs
that shop stewards are required to ‘always report at their places of work ’ except
when they are formally permitted to do otherwise. Against this backdrop of rules
adopted by the mine and conveyed, by all accounts , to the shop stewards, it is
alleged that Mr Kgotlang failed to adhere to the strict rules of reporting for duty at
his allocated place of work , although he denies knowledge of the recei pt of the
memorandum. Disciplinary action was instituted against him where he was
charged with gross insubordination in refusing to comply with a lawful instruction
by the Mine Overseer to report for his normal duties underground from the period
21 to 28 August 2020. In addition, a second charge of ‘c locking fraud’ was
levelled against him, alleging that he clocked in for the purposes of receiving
levelled against him, alleging that he clocked in for the purposes of receiving
payment from the company, but during the period 21 to 28 August 2020 did not
6
report to his workplace for his normal underground duties. After a hearing he was
found guilty on both counts and dismissed.
The arbitration
[9] At the commencement of the arbitration, the employee’s representative
confirmed that there was no challenge to the procedural fairness of the dismissal.
The sole issue was whether there was a fair reason to find him guilty of gross
insubordination and clocking fraud, justifying his dismissal. The basis of his
defence, as outlined at the arbitration, wa s that special arrangements had been
in place as to when a shop steward report s for duty. This was referred to as a
‘gentleman’s agreement’ concluded between the Production M anager and the
union leadership which effectively exempt ed shop stewards from reporting for
duty underground as they were required to assist employees on the surface. The
agreement was an informal one and not reduced to writing.
[10] Apart from his reliance on the gentleman’s agreement, his representative clarified
that they intended challenging the manner in which the instruction was issued to
Mr Kgotlang. Significantly, there was no dispute that an instruction was indeed
issued to him to report underground for duty. During the course of the arbitration,
the employee changed his stance, contending that no instruction had been
issued to him.
[11] The company called two witnesses, the first being Mr Daniel Moset lhe, a Mine
Overseer since 2019. He also served as a supervisor over Mr Kgotlang, with
whom he had a cordial relationship. It had come to his attention that Mr Kgotlang
was refusing to report underground for duty. Mr Mosetlhe denied the existence of
any ar rangement that permitted shop stewards to remain on the surface. He
stated that he issued an instruction on 21 August 2020 to both Mr Kgotlang and
the branch chairperson of the union, Mr Juda, to report to their respective section
underground. Only Mr Juda complied. As regards the offence of ‘clocking fraud’
underground. Only Mr Juda complied. As regards the offence of ‘clocking fraud’
he equated this to stealing from the company in circumstances where an
employee gets paid without rendering any service. He further confirmed that Mr
7
Kgotlang was not assigned to represent any employees as a shop steward at the
time when he issued his instruction, and accordingly there was no reason for him
not to have reported underground.
[12] Mr Mosetlhe stated that he issued numerous instructions to Mr Kgotlang to report
underground for duty and ‘warned’ him that he needed to do so. He also issued
an instruction on 21 August 2020 to Mr Kgotlang to report to his working area
under the shift supervisor, Mr Abel Lerefolo. This instruction was also not
complied with as the supervisor reported in a statement that he had never seen
Mr Kgotlang in his section . Mr Kgotlang contended Mr Lerefolo was absent on
the day. As a result of his failure to comply with the instructions, together with the
’clocking-in’ practice which Mr Mosetlhe considered to be dishonest , he became
the complainant in respect of the two charges against Mr Kgotlang.
[13] The second witness for the company was Mr Collet Penyenye, a human
resources assistant . With reference to a statement which he read into the
record, he confirmed that on 15 August 2020 he informed Mr Kgotlang and his
branch chairperson, Mr Juda, to report to their respective crews underground. He
informed Mr Kgotlang that he would be working with Mr Abel Lerefolo, to which
the employee stated that he would not do until he was given a ‘stopping crew or
ASD’. Mr Juda reported underground but not Mr Kgotlang. When Penyenye met
Mr Kgotlang two days later , he enquired from him when he was going
underground. Mr Kgotlang replied that he would go underground, but had not yet
reported to Mr Abel Lerefolo’s section despite being asked to do so. Mr
Penyenye reported Mr Kgotlang’s refusal to comply with the instruction to Mr
Mosetlhe.
[14] Mr Penyenye went on to explain the transfer procedure which entailed t he
handing over of Mr Kgotlang to his shift supervisor Mr Abel Lerefolo. However, in
the case of Mr Kgotlang, he did not present himself to be transferred, unlike Mr
the case of Mr Kgotlang, he did not present himself to be transferred, unlike Mr
Juda. The evidence further revealed that another supervisor, Mr Alfred Joya, had
on an earlier occasion refused to work with Mr Kgotlang.
8
[15] The evidence presented by the company’s witnesses was not shown under
cross- examination to be inconsis tent, speculative or based on ulterior motive to
falsely implicate the employee. On the contrary both witnesses testified of a
cordial relationship with Mr Kgotlang and even went to the extent of trying to
counsel him to change his behaviour . The repeated refusal by Mr Kgotlang to
report for underground duty led to the charges being brought against him. His
persistent refrain was the existence of the ‘gentleman’s agreement’ which he
contends permitted him to remain on the surface rather than reporting for duty
underground. He failed to adduce any corroborative evidence in support of this
‘gentleman’s agreement’, nor did he call as a witness the Production Manager
who supposedly concluded this agreement with the unions or any of the union
leadership who could validate these claims.
[16] Apart from the gentleman’s agreement being offered as an explanation for him
not reporting underground, Mr Kgotlang then offered the explanation that he was
not afforded a “stopping crew” or an “ASD”, and that the procedure for the
handing over of him to the shift supervisor, Mr Abel Lerefolo, had not been
complied with. It was submitted on behalf of the appellant that his failure to be
handed over to his shift supervisors , Mr Abel Lerefolo and Mr Alfred Joya should
not be interpreted as a refusal to obey instructions. Rather, it was contended that
in one instance Mr Alfred Joya refused to work with Mr Kgotlang, and in the other
Mr Abel Lerefolo was absent on the day. In both instances it was contended that
the employee was willing to accept being assigned underground duties. This
willingness to obey instructions is contrary to his response to Mr Penyenye and
Mr Mosetlhe. When he was confronted with the existence of the memorandum of
8 January 2020 which was intended to ensure that part -time shop stewards
report for their allocated duties underground, except where their trade union
report for their allocated duties underground, except where their trade union
duties required them to remain on the surface, he responded that he did not have
knowledge of the memorandum. In support of his denial, he called Mr
Mdutyullwa, a part-time shop steward who also stated that he had no knowledge
of the memorandum nor of the contents or instruction contained in the ERRA (the
recognition agreement) of February 2009.
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[17] In evaluating the evidence of Mr Kgotlang and his witness Mr Mdutyulwa, the
arbitrator who had the benefit of observing their testimony, found that their
evidence was rehearsed and that it was highly improbable that neither of them
were knowledgeable of the instructions contained in either the recognition
agreement or the memorandum of 8 January 2020. Mr Mdutyulwa also offered
himself as an example of the company’s inconsistency in apply ing its policies,
stating that he too did not report underground for duty and yet no disciplinary
action had been taken against him.
[18] The arbitrator dismissed Mr Kgotlang’s version of a ‘gentleman’s agreement’
which was contrary to the provisions of the recognition agreement of 2009, and
expressly in conflict with the directives issued to part -time shop stewards in the
January 2020 memorandum. It was only when Mr Kgotlang testified that had he
been made aware of the January 2020 memorandum that he said would have
reported for duty underground. This version was never canvassed with the
company’s witnesses when they testified and appears to be a rear -guard
manoeuvre. However, more importantly, it exposes the paucity of his reliance on
the absence of a transfer procedure (the parading of part-time shop stewards)
and the requirement of a “stopping crew or ASD ” before he could take up
underground duty. His version is further dismantled by the apparent acceptance
of the branch chairman of AMCU, Mr Juda, of the correctness and authority of
the instructions conveyed by the Mine Overseer, Mr Mosetlhe, requiring him to
report underground. Unlike Mr Juda’s compliance, Mr Kgotlang remained
belligerent in his refusal to comply.
[19] Perhaps most damning for Mr Kgotlang is the arbitrator’s conclusion that it was
improbable that a shop steward who is responsible for representing miners at
disciplinary enquiries and grievances would not be knowledgeable of policies
requiring employees to report at their allocated work sites. The arbitrator
requiring employees to report at their allocated work sites. The arbitrator
concluded that the:
‘applicant’s conduct was calculated to undermine the ability of the mine overseer
and the HR officer. His conduct was unjustified and had the propensity to cause
10
managerial paralysis. The evidence of Mzukisi was shameful and amounted to a
poorly rehearsed submission. He was extremely evasive and contradicted
himself on a number of locations’
Further adding:
‘Both Mzukisi and the applicant were adamant that they were doing union work
the entire time, yet when they were asked pertinent questions regarding union
activities, they were quick to say that they had never been trained and
therefore did not know anything. I find it mind-boggling that they spent all the time
doing union work according to them, yet knowing nothing about such union
activities. Their strategy, it seemed, was simply to deny anything.’
[20] The arbitrator found that Mr Kgotlang had no legitimate justification for refusing to
obey the instruction issued to him to report underground, and that he was
appropriately found guilty of gross insubordination. In addition, the arbitrator
found that there was no justification for him clocking in and not reporting
underground, yet receiving payment without the provision of any service to the
company. He testified that he knew that it was imperative for him to clock in to
receive his salary. In the circumstances , the arbitrator concluded that the
dismissal was substantively fair.
In the Labour Court
[21] The court a quo considered the provisions of the recognition agreement of
February 2009 and the memorandum addressed to all shop stewards , dated
January 2020, and weighed this against the evidence of Mr Kgotlang in relation
to the two counts of which he was found guilty. The Labour Court referred to a
host of authorities including Fidelity Cash Management Service v Commission for
Conciliation, Mediation and Arbitration and others1 where it was pointed out that:
‘The test enunciated by the Constitutional Court in Sidumo for determining
whether a decision or arbitration award of a CCM A commissioner is reasonable,
1 Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and others
(2008) 29 ILJ 964 (LAC) at para 100.
11
is a stringent test that will ensure that such awards are not lightly interfered
with…’
[22] The Labour Court further considered the provisions of item 3(4) of the Code of
Good Practice: Dismissal which provides that it is generally not appropriate to
dismiss an employee for a first offence, but that the offences of gross misconduct
and fraud are cited as exceptions. The court a quo was alive to the dearth of
evidence of a breakdown of the trust relationship between the employee and the
company, however relying on Impala Platinum Ltd v Jansen and others 2 it was
satisfied that in the circumstances of the matter, even in the absence of evidence
indicative of a breakdown of the trust relationship, it could not be expected that
the company should retain the services of an employee who acted dishonestly.
[23] The Labour Court approached the matter on the basis of the decision in
Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation and Arbitration and others
3 which held that to analyse every issue
raised at the arbitration, a nd even an irregularity in the award per se is not
sufficient to displace the reasonableness test enunciated in Sidumo.
[24] Insofar as the existence of a gentleman’s agreement between the parties, the
court a quo found no basis to interfere with the finding of the arbitrator, noting
that the employee did not produce any supporting evidence to establish the
existence of such an agreement. The court further found that even if such
agreement were to have existed, the subsequent instruction (in the form of the
2020 Memorandum) should have superseded the earlier informal agreement.
The employee’s refusal to pay heed to the instruction issued to him constituted
insubordination, having regard to two supervisors issuing repeated instructions to
him to report underground. However, even if the employee failed to comply with a
single lawful instruction, based on the decision in TMT Services and Supplies
single lawful instruction, based on the decision in TMT Services and Supplies
2 Impala Platinum Ltd v Jansen and others [2017] 4 BLLR 325 (LAC).
3 Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and
Arbitration and Others (2014) 35 ILJ 943 (LAC).
12
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others4
‘defiance of authority can be proven by a single act of defiance’. As regards the
clocking fraud, the Labour Court found that this c harge should be read together
with the charge of gross insubordination. The court concluded that there was no
justification for his conduct and that the conclusion reached in dismissing the
review application was one that was considered reasonable.
Grounds of appeal
[25] It was contended on behalf of Mr Kgotlang that the court a quo ignored the fact
that the arbitrator was bound to consider the Code of Good Practice: Dismissal in
determining whether dismissal was appropriate and failed to consider the issue
of inconsistency in the application of disciplinary proceedings for the same
conduct. The court a quo concluded that there was no evidence of a gentleman’s
agreement, leading it to conclude that he was g rossly insubordinate as well as
being guilty of dishonest conduct.
[26] I should point out that no reasons were given by the court a quo in granting leave
to this C ourt. As such, we do not have the benefit of what the court a quo
considered to be worthy in the appellant’s argument of warranting the attention of
this Court. It is therefore desirable that when the Labour Court grants leave to
appeal it should set out, even briefly, the reasons for its decision. In the absence
thereof, this Court may face a deluge of appeal s, without any indication that the
court a quo has properly applied its mind to the application for leave to appeal,
which is a jurisdictional prerequisite.
Analysis
[27] In assessing the respective arguments, it must be borne in mind it is neither the
function of a review court , nor that of an aggrieved litigant , to microscopically
analyse the evidence at the arbitration in an attempt to demonstrate that the
4 TMT Services and Supplies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and
others (2019) 40 ILJ 150 (LAC) at para 19.
13
award under review is incorrect and should therefore be set aside. The question
central to that enquiry is whether the arbitrator’s decision is one that a
reasonable decision- maker could reach. Sutherland JA in Makuleni v Standard
Bank of SA (Pty) Ltd and Others 5 warned of a review court yielding ‘ to the
seductive power of a lucid argument that the result could be different’ . The court
went on to state that:6
‘…At the heart of the exercise is a fair reading of the award, in the context of the
body of evidence adduced and an even-handed assessment of whether such
conclusions are untenable. Only if the conclusion is untenable is a rev iew and
setting aside warranted.’
[28] Before approaching this C ourt, Mr Kgotlang had the benefit of two reasoned
decisions by an arbitrator and the Labour Court . Both fora considered very much
the same arguments and reached essentially the same conclusion that the
appellant was guilty of gross insubordination and clocking fraud, justifying his
dismissal. A fair reading of the record reveals that Mr Kgotlang’s supervisors had
no malice towards him when they gave him the instruction to report underground.
They were implementing company policy. His refusal to obey a reasonable and
legitimate instruction was built on an edifice of a gentleman’s agreement (for
which no corroborative evidence was furnished) and procedural , technical or
formalistic requirements of shop stewards having to be “ paraded” or that a
“stopping crew” was to first be in place before he could be handed over to a shift
supervisor. None of this address ed the core issue that he was refusing to report
for duty underground, and to perform the services for which he was being paid.
[29] Mr Kgotlang’s pr oblems were compounded by his attempt to evade liability,
based on his denial of any knowledge of the 2009 r ecognition agreement or the
2020 memorandum addressed to shop stewards . His plea of ignorance of the
2020 memorandum addressed to shop stewards . His plea of ignorance of the
rules was found by the arbitrat or to be “highly improbable”. I agree. If he spent
his time as a shop steward attending to union duties rather than being posted
5 Makuleni v Standard Bank of SA (Pty) Ltd and Others (2023) 44 ILJ 1005 (LAC) para 4.
6 Ibid at para 4.
14
underground, it would be entirely reasonable to expect him to be familiar with
company policies and procedures. The ineluctable reason for his denial is that
the 2009 r ecognition agreement and the 2020 m emorandum explicitly recorded
what was required of a part -time shop steward. They jettisoned any reliance on
the so- called gentleman’s agreement and was aimed at correcting the exact
conduct attributed to the appellant. Even Mr Kgotlang’s own union branch
chairperson saw it fit to comply with the instructions issued by Mr Mosetlhe.
[30] The arbitrator was severe in his criticism of Mr Kgotlang’s witness, Mr Mdutyulwa.
The findings made by the arbitrator can be equated to credibility finding s by a
trial court. In this case, the arbitrator found Mr Mdutyulwa to be evasive and that
both he and Mr Kgotlang had rehearsed their evidence. Credi bility findings
should not be judged in isolation, but must be founded (as it was by the
arbitrator) in light of proven facts and the probabilities of the matter . I can find no
misdirection with the arbitrator ’s findings and approach in this respect. Whilst a
court of appeal is generally reluctant to disturb findings which depend on
credibility, it is trite that it will do so where such findings are plainly wrong. 7 In the
present case, the Labour Court found no reason to disagree with the arbitrator’s
findings regarding the appellant’s witness, Mr Mdutyulwa. I see no reason to
conclude otherwise.
[31] Tuning to Mr Kgotlang’s conduct, based on the Constitutional Court’s decision in
National Union of P ublic Service and Allied Workers obo Mani and O thers v
National Lotteries Board8 it was submitted that it did not amount to a ‘calculated
breach’. The evidence reflects the opposite. He was issued with an instruction
five times, which he refused to obey. Importantly, these instructions were issued
by supervisors with whom he had a cordial relationship. Mr Penyenye stated that
by supervisors with whom he had a cordial relationship. Mr Penyenye stated that
he engaged with the appellant on his stance, even describing him as a ‘Brother’.
He understood t hat he was an experienced team leader and therefor attempted
to reason with him.
7 See: R v Dhlumayo and Another 1948 (2) SA 677 (A) at p 706.
8 2014 (3) SA 544 (CC); (2014) 35 ILJ 1885 (CC) at para 213.
15
[32] It was submitted on behalf of the employee that the arbitrator should not have
found him guilty of dishonesty, but at worst for abusing the clocking-in procedure.
This submission loses sight of the evidence of repeated instructions issued to the
employee, and that he was clearly aware of the need to clock -in to ensure he
was paid, despite not keeping his end of the bargain in reporting for duty
underground. Mr Cook, who appeared on behalf of Mr Kgotlang, accepted that
while the refusal to obey may have been persistent, it was not wilful in as much
as the appellant bona fide believed that he first had to be paraded before he
could report for duty underground. It was submitted that the absence of
wilfulness should have warranted a lesser sanction than dismissal.
[33] In Enviroserve Waste Management (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
9 the court considered the conceptual
difference between insolence and insubordination and said the following:
‘[15] It is accepted that the offence of mere insolence is not in itself sufficient to
result in a dismissal. What is defined as ‘mere insolence’ will obviously
depend on the circumstances and the conduct in question, and its effects.
However, for insolence to justify a dismissal, it must by all accounts be
wilful and serious, with the result that the employment relationship
irretrievably breaks down. Examples of gross insolence include some as
already indicated above, and may extend to inter alia, verbal abuse
and/or tirades which may be laced with crass profanities, making personal
or crude insults or gestures toward a superior, coupled with violent
conduct in some instances, or even making physical or other threats.
[16] Insolence as directed towards persons in managerial or supervisory
positions, especially in the presence of other junior employees, invariably
results in the manager’s or supervisor’s authority being undermined, and
results in the manager’s or supervisor’s authority being undermined, and
has the effect of either belittling or humiliating that manager or supervisor.
As a general rule therefore, employees are expected to show
professionalism, courtesy and respect towards their managers and
9 Enviroserve Waste Management (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and
Others (P99/14) [2016] ZALCPE 23 (15 November 2016) at paras 15 to 17.
16
supervisors. If junior employees fall short of that expectation, ill -discipline
and other unintended consequences may be the order of the day, which
may have a negative effect on productivity and general harmony in the
workplace.
[17] In Palluci Home Depot (Pty) Ltd, the Labour Appeal Court, also held that
the sanction of dismissal should be reserved for instances of gross
insolence and gross insubordination. To this end, the LAC accepted that
respect and obedience are implied duties of an employee under contract
law, and any repudiation thereof will constitute a fundamental and
calculated breach by the employee to obey and respect the employer’s
lawful authority over him or her...’
[34] Mr Kgotlang was unable to point to anything that prevented him from resuming
duties underground, even if the formalities he referred to (such as being
‘paraded’ or not having a ‘stopping team’) had not been in place at the time when
he was issued with the instructions. I was not persuaded by the contention that
the ‘parading’ of miners prior to them being transferred underground was a safety
procedure. This was a contention advanced in argument but not elaborated in
any way by evidence. It was further contended that the employee’s conduct was
not defiant but rather borne from a mistaken understanding of the processes
before he could perform duties underground. I am not persuaded by this
argument as the defence raised by the employee rested on various pillars, each
of which was shown to be unsustainable. Finally, Mr Kgotlang could not point to
anything unreasonable or unlawful in the instructions. As submitted by Mr
Kgotlang his explanations for not complying vacillated from one excuse to
another. Ultimately, he was solely responsible for events leading to his dismissal.
[35] The arbitrator carefully evaluated the evidence of the witnesses, considered the
evidence of the company policies and procedures and the explanation tendered
evidence of the company policies and procedures and the explanation tendered
by the Mr Kgotlang for his conduct. The arbitrator was clearly alert to the issues
he was required to determine, and there was no suggestion that he misconceived
the enquiry to be undertaken. The employee’s conduct which led to his dismissal
17
stemmed from a persistent, wilful refusal to obey a legitimate instruction. In as far
as the clocking fraud count, it was accepted that the employee clocked in at work
and did not report underground. Mr Cook informed the court at the hearing that
the employee did not proceed underground for the period since he had been
appointed a shop steward – almost two years. It was submitted that during this
time he did trade union duties. If he did, it is inconsistent with his evidence that
he was unaware of any polic ies or regulations applicable to the workplace. I am
unable to find any misdirection or irregularity by the arbitrator in arriving at the
conclusion he did.
[36] The Labour Court was tasked in determining, on review, whether the arbitrator’s
decision which found the employee guilty of two counts of misconduct and
determined that he be dismissed, was a decision to which a reasonable decision-
maker could have come on the available evidence. The Labour Court cannot be
faulted for upholding the determination of the arbitrator, which ultimately is a
value judgment, but is one which was not unreasonable and not one that no
other arbitrator could have come to.
[37] In the result, the following order is made:
Order
1. The appeal is dismissed;
2. There is no order as to costs.
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M. R. Chetty
Acting Judge of the Labour Appeal Court of South Africa
Van Niekerk JA and Kganyago AJJA concur.
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APPEARANCES:
FOR THE APPELLANT : Mr AL Cook
Instructed by: LDA Attorneys
FOR THE RESPONDENT : Mr MD Madiba
Instructed by: Khanyisa Mogale Attorneys