IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: C524/2017
In the matter between:
ACADEMY BRUSHWARE (PTY) LTD Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
CM BENNETT N.O. Second Respondent
JOLEEN GESWENT Third Respondent
Date of hearing: 4 November 2025
Date of delivery: 12 August 2026
Summary: Employee dismissed for insubordination – CCMA finding that there was
no insubordination by employee – review – circumstances not establishing a
2
deliberate flaunting of an instruction and dismissal would in any event be too harsh
– application for review dismissed.
________________________________________________________________
JUDGMENT
_______________________________________________________________
A OOSTHUIZEN AJ
1 This is an application for the review of a finding by the Second Respondent,
a CCMA Commissioner (“the Commissioner”) in an unfair dismissal dispute
which was referred by the Third Respondent (“the Employee”).
2 The Employee commenced working for the Applicant (“ the Employer”) in
September 2002. Since 2013, she held the position of a computer clerk.
She was dismissed in 2017 after she had been found guilty, in a workplace
disciplinary enquiry, of gross insubordination.
3 Although the matter is not opposed, the applicable standard of review
remains that highlighted in numerous judgments, including the decision of
the LAC in Fidelity Cash Management Services v CCMA & Others (2008)
3 BLLR 197 (LAC) at paras 99 – 100. A decision of the CCMA will only be
set aside on review if the finding reached by the Commissioner is one that
a reasonable decision-maker could not reach. The test is a stringent one
which will ensure that awards are not lightly overturned.
3
4 Appellant was charge with gross insubordination, it being alleged that “ you
posted pictures on social media which are inconsistent with the Company’s
reputation and level of professionalism in direct defiance of your manager’s
instructions not to do so”.
5 The evidence shows that the Employer utili sed pop-up images in its
marketing campaigns. One of these, relevant to this review, depicted a
blonde woman (“the cutout model”) wearing a pair of shorts and high heels,
standing against a backdrop which features the name of the Employer and
various items of brushware, which is one of the products sold by the
Employer. The charge arises from certain photographs posted by the
Employee on social media, showing herself standing next to the cutout
model. The Employee is also wearing a pair of shorts and high heels and
is evidently trying to emulate the pose which the cutout model is striking, in
the particular picture.
6 One of the aforesaid photographs was posted by the Employee on 17 March
2017. The Employer’s evidence is that, in response to thi s initial post Mr
Kingham, one of the managers, instructed the Employee not to post such
pictures on social media. The gravamen of the charge is that , in direct
defiance of this instruction, she later that day posted further and similar
photographs on social media.
~
4
7 In her evidence, the Employee disputed that Kingham had told her not to
post the pictures on social media . She conceded that there had been a
discussion, but was adamant that no such instruction had been given.
8 Although the Commissioner did not explicitly indicate which of the two
versions he accepted, the onus is clearly on the Employer to establish the
facts on which it relies. There appears to be no basis for arguing that the
evidence of Kingham was to be preferred above that of the Employee as to
the discussion that was held on 17 March 2017.
9 The review then revolves around the ultimate conclusion which the
Commissioner reached, based on the other evidence before him. That
exercise necessitates, firstly, a careful consideration of the circumstances
under which insubordination warrants the dismissal of an employee.
10 It cannot be disputed that the severity of the conduct alleged to constitute a
disciplinary offence is of importance. The following dictum of Sutherland JA
in TMT Services & Suppliers (Pty) Ltd v CCMA & Others (2019) 40 ILJ
150 (LAC) at para 2 1 applies to a workplace transgression of
insubordination, as well as workplace transgressions generally:
“Adjudging the severity of misconduct in context, is a power
conferred on an arbitrator. It is partly, at least, a value judgment.
The choice made by the arbitrator must stand unless it is
demonstrable that no reasonable arbitrator could have reached that
conclusion.”
5
11 It is well -established that, to constitute insubordination, an employee’s
refusal to obey an instruction must be deliberate, and the instruction must
be reasonable and lawful (Grogan, “Dismissal”, 4th ed, p 224). Counsel
for Applicant correctly submitted that insubordination is not confined to
cases where it can be shown that the employer suffered some form of
detriment as a result of the employee’s refusal to obey the instruction. The
requirements are, as already stated, an intentional and deliberate refusal to
obey a lawful and reasonable instruction.
12 The need to consider the alleged act of insubordination contextually was
also highlighted in the cases to which Applicant referred in argument of
Masscash (Pty) Ltd v Mtsotsoyi & Others (2023) 44 ILJ 162 (LAC) and
Motor Industry Staff Association & Another v Silverton Spraypainters
& Panelbeaters & Others (2013) 34 ILJ 144 (LAC) at para 13.
13 The nature of the instruction which was transgressed does, however, play
an important role on a separate question, namely whether the act
complained of warranted dismissal. Item 7(b) of the Code of Good Practice
found in Schedule H of the Labour Relations Act requires a person
determining whether dismissal for misconduct is unfair to consider inter alia
whether dismissal was an appropriate sanction for the contravention
complained of. The following approach laid down in SACCAWU & Another
v Shoprite Checkers (1995) 12 BLLR 87 (IC) at 92I – 93D is, in my view,
valuable and persuasive:
6
“A study of Johan and Ronell Piron’s book entitled Managing
Discipline and Dismissal at pages 139 to 142 reveals that not every
act of insubordination or disobedience will justify summary dismissal.
The refusal must be serious and deliberate. In modern equity terms,
insubordination will seldom be dismissible for a first occurrence.
Although gross insubordination may justify dismissal for a first
occurrence, the dismissal must generally be preceded by warnings.
At pages 41-43, Clive Bennett in A Guide to Law of Unfair Dismissal
in South Africa:
‘The degree of seriousness must be assessed in the light of all the
circumstances. And much depends on the implications of the
refusal.’”
See, too National Trading Co v Hiazo (1994) 12 BLLR 53 (LAC).
14 In numerous cases the courts have required that the insubordination must
be sufficiently serious and deliberate to warrant the dismissal of the
employee. ( Jefferies v President Steyn Mine (1994) 10 BLLR 76 (IC) ;;
CWIU & Another v AECI Paints (1988) 9 ILJ 1046 (LC); Acrylic Products
(Pty) Ltd v CWIU & Another (1997) 4 BLLR 370 (LAC)).
7
15 Furthermore, it is required of the employer to consider alternatives to
dismissal such as the issuing of a warning or final warning ( CWIU &
Another v SA Polymer Holdings (Pty) Ltd (1996) 8 BLLR 978 (LAC) ).
The employee’s length of service and disciplinary record may also
constitute factors to be taken into account. (Armitage Shanks SA (Pty)
Ltd v Mtisi (1994) 8 BLLR 4 (LAC)).
16 What are the facts relevant to determining the seriousness of the
Employee’s conduct in the review under consideration? Firstly, there was
no evidence of an established workplace code or set of rules relating to
posting on social media. Secondly, and as already pointed out, the
photographs in which the Employee adopted the various poses detailed
above do not appear markedly different, in character or any other respect,
from the photograph of the cutout model. Thirdly, there is no evidence that
the business of the Employer suffered any actual harm as a result of the
posts made by the Employee. There is no suggestion that the posts
occasioned any damage in the marketplace, or complaints or concerns from
the Employer’s customers.
17 These factors, viewed cumulatively, militate against any finding that the
transgression called for the dismissal of the Employee. They must be
viewed in conjunction with the evidence as to the actual instruction given,
and the degree to which such instruction was disobeyed.
18 In this regard there is, firstly, the dispute concerning whether a conversation
with Mr Kingham on the morning of 17 March was a discussion of a general
8
nature, or amounted to a clear instruction to the Employee to refrain from
posting on social media. It therefore cannot be found that there was a
specific instruction, either emanating from the conversation with Mr
Kingham or from a pre-existing workplace procedure or code.
19 The evidence also does not establish a persistent or ongoing refusal by the
Employee to obey an instruction. The highwater mark of the Employer’s
case is that on 20 March 2017, Kingham again instructed the Employee not
to a post a picture on social media and that, at that stage, she did no t alert
him to the fact that she had made a post following their discussion on 17
March 2017. The extent to which this is a serious factor would depend on
whether, on 17 March 2017, Kingham had expressly and explicitly issued
an instruction to her and, as already pointed out, there is a dispute between
the parties on that particular aspect.
20 More relevantly, when instructed to take the posts down on 20 March 2017,
the Employee did so. That militates against any conclusion that she wilfully
and persistently defied an instruction.
21 To an extent, the Commissioner conflated the questions of whether the
employee was guilty of insubordination and the question of whether the act
complained of warranted dismissal. That does not, however, detract from
the negligent nature of the other conc lusions arrived at by the
Commissioner, nor does it mean that the ultimate conclusion arrived at was
one that a reasonable decision-maker could not have reached.
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22 Taking into account all of the aforegoing factors, the Commissioner’s
decision is not in my view one which could not have been reached by a
reasonable functionary on the facts and evidence presented. It follows that
the application for a review of the Commissioner’s decision canno t be
upheld.
23 The application is accordingly dismissed, with no order as to costs.
__________________
AC OOSTHUIZEN A.J.
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant : Advocate Lourens O’Connor
Instructed by: Soldatos Cooper Inc.