THE LABOUR APPEAL COURT OF SOUTH AFRICA, GQEBERHA
Case no: PA05/2025
In the matter between:
GOODYEAR SOUTH AFRICA (PTY) LTD Appellant
and
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA (NUMSA) OBO VUSUMZI JACOBS
& 53 OTHERS First Respondent
AMON NYONDO N.O. Second Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Third Respondent
Heard: 26 May 2026
This judgment was handed down electronically by circulation to the parties’
representatives by email, published on the Labour Appeal Court website, and
released to SAFLII. The date and time for hand- down is deemed to be on 20 August
2026.
Coram: Masipa AJA, Tokota AJA et Moshoana AJA
JUDGMENT
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
MASIPA, AJA
Introduction
[1] This appeal concerns the substantive fairness of the dismissal of 54
employees employed by the appellant at its mixing operations in Uitenhage.
Although the employees were found guilty of insubordination, the
commissioner concluded that dismissal was an inappropriate sanction and
ordered their reinstatement. The Labour Court (Makhura J) dismissed a
review application brought by the appellant. Leave to appeal having ultimately
been granted on petition, the matter now serves before this Court.
[2] The appeal does not concern whether the employees committed misconduct.
Both the commissioner and the Labour Court found the employees guilty of
insubordination. The central issue is whether the commissioner’s
determination that dismissal was too harsh a sanction was one that a
reasonable decision-maker could reach.
[3] A further development occurred after the arbitration award, the review
proceedings, and the grant of leave to appeal. It is common cause that during
or about August 2025, the appellant ceased its South African manufacturing
operations and closed its manufacturing plant. The significance of that
development was raised during oral argument. Whilst it does not bear upon
the determination of the merits of the appeal, it may have implications for the
practical consequences of the relief granted should the appeal fail.
Factual background
[4] The appellant operated a tyre manufacturing business in South Africa. The
individual respondents were employed in the Banbury Department, a
department responsible for the mixing process utilised in the manufacture of
tyres. The appellant regarded the uninterrupted operation of the Banbury
mixing machines as important to maintaining production levels.
[5] During March 2020, the appellant and the National Union of Metalworkers of
South Africa (NUMSA), acting on behalf of employees in the Banbury
Department, concluded a collective agreement to facilitate the continuous
3
operation of the mixing machines during meal and tea breaks. The
arrangement required employees, in certain circumstances, to provide relief to
fellow operators during break periods to ensure uninterrupted production.
[6] During 2020, disagreements emerged concerning the implementation of the
arrangement. NUMSA disputed aspects of its operation , and the matter
ultimately became the subject of proceedings before the Commission for
Conciliation, Mediation and Arbitration (the CCMA). The merits of that dispute
are not for determination in this appeal. It is nevertheless common cause that,
by March 2021, the disagreement remained unresolved and formed part of
the industrial relations environment in which the events giving rise to the
dismissals occurred.
[7] The events that ultimately culminated in the dismissal of the respondents did
not commence on 8 March 2021. The evidence before the commissioner
established that concerns regarding the operation of the staggered- break
arrangement had surfaced several days earlier.
[8] On 2 March 2021, Mr Brian van Rensburg declined to continue operating
under the staggered-break arrangement. The issue was raised with
management, and discussions followed among Van Rensburg, NUMSA
representatives, and members of management. Mr Langa Nguqu, a NUMSA
shop steward, testified that he accompanied Van Rensburg to a meeting with
Mr Sakhumzi Manyisana of the appellant’s Human Resources Department.
[9] According to Nguqu, NUMSA's position was that the arrangement was being
implemented in a manner not contemplated by the collective agreement and
that employees were effectively being required to perform duties extending
beyond those previously performed. Nguqu testified that Manyisana
undertook to raise the matter with senior management. He further testified
that Van Rensburg was permitted to continue working in the manner he had
adopted pending further engagement on the issue and that no disciplinary
action was taken against him at that stage.
action was taken against him at that stage.
[10] The significance of the events of 2 March 2021 lies not so much in the
conduct of Van Rensburg itself, but in the manner in which management
4
responded thereto. During the arbitration proceedings , the commissioner
relied on this evidence to conclude that the appellant had not applied
discipline consistently. The appellant, in both the Labour Court and this Court,
challenged the relevance and correctness of that conclusion.
[11] In the days that followed, management maintained that employees remained
obliged to provide relief during tea and meal breaks to ensure continuous
production. Employees, on the other hand, regarded the issue as linked to the
broader unresolved dispute concerning the implementation of the
arrangement.
[12] Matters came to a head on 8 March 2021. On that day , a meeting was
convened with employees in the Banbury Department. Management
reiterated that the staggered- break arrangement remained operative and that
employees were required to comply with instructions issued pursuant thereto.
[13] Following the meeting, several employees refused to comply with the
instruction. Throughout, the appellant's case has been that the employees
deliberately refused to obey a lawful and reasonable instruction. The
respondents disputed neither the existence of the instruction nor their failure
to comply therewith. Their case was directed principally at the fairness of the
sanction imposed and the circumstances within which the conduct occurred.
[14] It was common cause that the refusal to comply had operational
consequences. The evidence established that production in the Banbury
Department was adversely affected. The appellant regarded the conduct as a
serious challenge to managerial authority and as undermining the continuous
operation of the production process.
[15] Pursuant to the events of 8 March 2021, management communicated with
employees and NUMSA representatives to secure compliance. Internal
communications were exchanged among senior managers regarding the
operational consequences of the refusal and the disciplinary measures that
would follow.
5
[16] On 9 March 2021, the appellant commenced disciplinary action against
employees who had refused to comply with the instruction. Proposed final
written warnings were prepared and communicated to affected employees.
NUMSA was informed of the appellant's intention to proceed with disciplinary
action. The final written warnings recorded that the employees had
deliberately and without justification refused to comply with a lawful and
reasonable instruction requiring the implementation of staggered breaks to
maintain continuous production. The warnings were issued during the period
9 to 10 March 2021.
[17] The appellant's case was that , notwithstanding the issuance of the final
written warnings, the employees persisted in their refusal to comply with the
instruction. The appellant regarded this continued refusal as demonstrating
deliberate and ongoing defiance of management authority. It therefore,
viewed the misconduct particularly serious because the refusal continued
despite the employees having been formally warned.
[18] On 11 March 2021 the employees were suspended , and disciplinary
proceedings were instituted. The charges ultimately preferred against them
alleged gross insubordination arising from their refusal to comply with
instructions to implement staggered breaks between 9 and 11 March 2021.
The disciplinary enquiries culminated in findings that the employees had
deliberately refused to obey lawful and reasonable instructions. In determining
the sanction, reliance was placed not only on the refusal to comply with the
instruction but also on the employees' persistence in the conduct whilst in
receipt of final written warnings relating to substantially the same misconduct.
The employees were dismissed.
[19] NUMSA referred an unfair dismissal dispute to the CCMA on behalf of the
employees. Although the employees challenged the fairness of their
dismissals, the arbitration ultimately proceeded on the basis that the
dismissals, the arbitration ultimately proceeded on the basis that the
commissioner was required to determine both whether the misconduct had
been established and, if so, whether dismissal constituted an appropriate
sanction.
6
The arbitration award
[20] The arbitration was conducted before Commissioner Nyondo. The
commissioner rejected the employees' contention that they had not committed
misconduct. Having considered the evidence presented by both parties, he
concluded that the employees had deliberately refused to comply with
management's instructions to implement the staggered- break arrangement.
The commissioner accordingly found the employees guilty of insubordination.
[21] The commissioner nevertheless concluded that dismissal was not an
appropriate sanction. The principal reasoning underpinning that conclusion
appears from paragraphs 69 to 74 and paragraphs 87 to 99 of the award. The
commissioner first dealt with evidence relating to Mr Van Rensburg. In
paragraph 69 of the award, he recorded the evidence of Mr Nguqu concerning
the events of 2 March 2021. The commissioner noted that Mr Van Rensburg
had refused to continue operating in accordance with the appellant's
requirements and that the matter was raised with management. According to
Nguqu, Mr Manyisana undertook to engage further on the issue, and Van
Rensburg was permitted to continue working as he had been, pending further
discussions.
[22] The commissioner recorded that no disciplinary action was taken against Van
Rensburg at that stage. It is apparent from the subsequent reasoning in the
award that the commissioner regarded this evidence as relevant to the issue
of consistency in the application of discipline.
[23] The commissioner thereafter turned to the question of sanction. In paragraph
87 of the award, he observed that, notwithstanding the seriousness of the
misconduct, the determination of an appropriate sanction required
consideration of all relevant circumstances. In paragraph 88 , the
commissioner considered the broader context within which the misconduct
occurred. He recorded that the conduct arose against the backdrop of an
ongoing collective dispute concerning the implementation of the staggered-
ongoing collective dispute concerning the implementation of the staggered-
break arrangement and that the employees' refusal to comply could not be
viewed entirely in isolation from that dispute.
7
[24] The commissioner returned to this theme throughout the sanction analysis.
He regarded the collective nature of the dispute as a factor relevant to
blameworthiness and considered that management's response to the dispute
formed part of the overall assessment of fairness. In paragraph 90, the
commissioner turned to the final written warnings issued on 9 and 10 March
2021 and stated:
‘A Final Written Warning is the penultimate sanction short of dismissal. It
ought to be issued as a result of a fair process ...’
The commissioner expressed concern about the sequence of events following
the issuance of the warnings and the speed with which dismissal ultimately
ensued.
[25] The commissioner observed that final written warnings were issued on 9 and
10 March 2021 and that suspensions followed shortly thereafter. He regarded
the chronology as relevant to determining whether dismissal constituted a
proportionate response to the misconduct. In paragraph 94, the commissioner
addressed the issue of inconsistency and stated:
‘The inconsistency in the application of discipline by the Respondent ...’
He thereafter relied upon what he regarded as differential treatment accorded
to employees in comparable circumstances.
[26] The commissioner considered both Van Rensburg's treatment and the
appellant's response to employees who later participated in an unprotected
strike. In his view , these matters demonstrated inconsistency in the
application of discipline and constituted factors weighing against dismissal.
Paragraph 95 of the award formed a significant component of the
commissioner's reasoning. There, the commissioner recorded that employees
who subsequently participated in an unprotected strike had not been
subjected to the same disciplinary consequences despite the operational
losses occasioned by that conduct. The commissioner regarded this as
reinforcing his conclusion that dismissal was not consistently applied.
8
[27] The commissioner also considered the absence of evidence concerning the
destruction of the employment relationship. In paragraph 97, he stated:
‘No evidence was placed before me to demonstrate that the continued
employment relationship had become intolerable.’
The commissioner regarded this as a significant consideration. In his view, the
appellant had not demonstrated that continued employment was no longer
feasible, notwithstanding the seriousness of the misconduct. Having
considered these factors cumulatively, the commissioner concluded that
dismissal was too harsh a sanction. He found the dismissals substantively
unfair and ordered the reinstatement of the employees.
[28] It is immediately apparent from the award that the commissioner did not
exonerate the employees. Nor did he find that the misconduct was trivial. The
award proceeded from the premise that the employees had committed acts of
insubordination. The dispute before the Labour Court, and now before this
Court, concerns whether the commissioner was entitled to rely on the
considerations identified above in concluding that the dismissal was
nevertheless unfair.
[29] Three aspects of the commissioner's reasoning were subjected to sustained
criticism by the appellant. The first concerned the commissioner's reliance on
inconsistency, particularly his reliance on the treatment of Van Rensburg and
on employees who later participated in an unprotected strike. The second
concerned the weight attached to the collective nature of the dispute and the
context within which the misconduct occurred. The third concerned the
significance attributed to the final written warnings issued on 9 and 10 March
2021. These issues also formed the central focus of the review proceedings
before the Labour Court.
The Labour Court judgment
[30] Aggrieved by the arbitration award, the appellant launched review
proceedings in the Labour Court in terms of s 145 of the Labour Relations
9
Act1 (the LRA). The review application came before Makhura J. The review
was predicated principally on the commissioner's reasoning on the sanction.
The appellant did not contend that the commissioner had erred in finding the
employees guilty of insubordination. Rather, it contended that the
commissioner had reached an unreasonable conclusion in finding dismissal to
be inappropriate.
[31] The appellant advanced several grounds of review. It contended, inter alia ,
that the commissioner had expanded the issues beyond those identified in the
pre-arbitration minute; improperly entertained and relied upon inconsistency;
mischaracterised the dispute as one involving collective misconduct;
impermissibly considered the fairness of the final written warnings
notwithstanding the absence of an unfair labour practice dispute; and failed
properly to appreciate the gravity of the insubordination committed by the
employees.
[32] The Labour Court approached the matter on the basis that the commissioner
had accepted that the employees were guilty of insubordination and that the
dispute ultimately turned on the appropriateness of dismissal as a sanction. In
paragraph 29 of the judgment, Makhura J observed that the commissioner
had found the employees guilty of insubordination and had thereafter
considered whether that misconduct was sufficiently serious to justify
dismissal. The C ourt held that the commissioner had undertaken the enquiry
required of him under the LRA and had not ignored the seriousness of the
misconduct. The Labour Court further held that the commissioner was entitled
to consider the surrounding circumstances when determining whether
dismissal was fair. Those circumstances included the context within which the
misconduct occurred, the final written warnings issued on 9 and 10 March
2021, and the treatment of Van Rensburg and of employees who
subsequently participated in an unprotected strike.
[33] In relation to the final written warnings, the Labour Court rejected the
[33] In relation to the final written warnings, the Labour Court rejected the
contention that the commissioner had exceeded his powers. The Court did not
understand the commissioner to have set aside the warnings or to have
1Act 66 of 1995, as amended.
10
determined an unfair labour practice dispute. Rather, it held that the
commissioner was entitled to consider the existence and significance of the
warnings in assessing the fairness of the subsequent dismissals. The Labour
Court likewise rejected the appellant's complaint concerning inconsistency. It
concluded that the commissioner was entitled to have regard to the treatment
of other employees in assessing whether discipline had been applied
consistently and fairly.
[34] As regards the collective nature of the dispute, the Labour Court held that the
commissioner was entitled to consider the industrial relations context within
which the misconduct occurred. The C ourt did not understand the
commissioner to have justified the employees' refusal to comply with
instructions. Rather, it considered that the commissioner had treated the
existence of the dispute as one of several contextual factors relevant to the
sanction. Makhura J further accepted the commissioner's finding that no
evidence had been presented demonstrating that the employment relationship
had broken down irretrievably or that continued employment had become
intolerable.
[35] Having considered the totality of the evidence and the reasons furnished by
the commissioner, the Labour Court concluded that the award fell within the
band of decisions that a reasonable decision- maker could reach. The review
application was accordingly dismissed, and t he Labour Court subsequently
refused the appellant's application for leave to appeal . Leave to appeal was
thereafter granted on petition.
[36] The appeal before this Court is directed against the correctness of the Labour
Court's conclusion that the commissioner's determination on sanction
survived scrutiny under the review standard established by the Constitutional
Court and subsequently developed in the jurisprudence of the Labour Appeal
Court (the LAC) and the Supreme Court of Appeal (the SCA).
Applicable legal principles
The review standard
11
[37] The appeal ultimately concerns the correctness of the Labour Court's
conclusion that the arbitration award withstands scrutiny under s 145 of the
LRA. It is therefore convenient to commence with the applicable review
principles. The proper approach to the review of arbitration awards was
authoritatively articulated by the Constitutional Court in Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others (Sidumo),
2 Navsa AJ formulated
the now familiar test as follows:
‘…Is the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...’
[38] The significance of Sidumo is that a review under s 145 of the LRA is
concerned with reasonableness rather than correctness . A reviewing court
does not enquire whether it would have reached the same conclusion as the
commissioner. Nor does it ask whether the commissioner's conclusion is the
best or preferable one. The enquiry is whether the outcome falls within a
range of decisions reasonably open to the commissioner on the material
before him or her.
[39] The review standard was further refined in Herholdt v Nedbank Ltd
(Herholdt),3
the SCA held:
‘…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 enquiry or arrived at an unreasonable
result.…’
The SCA emphasised that not every factual or legal error committed by a
commissioner renders an award reviewable. The error must be of such a
nature that it distorts the enquiry or produces an unreasonable outcome.
[40] In Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others (Gold Fields),4 the LAC
cautioned against a fragmented evaluation of the award. In paragraphs 14 to
2 (2007) 28 ILJ 2405 (CC) at para 110.
3 (2013) 34 ILJ 2795 (SCA) at para 25.
4 (2014) 35 ILJ 943 (LAC) at paras 14-20.
12
20, it stressed that the review court must consider the totality of the evidence
and the overall reasonableness of the outcome, rather than isolate individual
errors and assess them in isolation.
[41] A similar approach was adopted in Head of the Department of Education v
Mofokeng and Others
(Mofokeng).5 Murphy AJA explained at paragraph 33
that an error or irregularity is only reviewable if it is material in the sense that it
prevents a fair trial of the issues or results in an unreasonable outcome. The
focus remains on the relationship between the alleged irregularity and the
result ultimately reached. These authorities make clear that the appellant
bears the burden of demonstrating not merely that the commissioner erred,
but that the error was material and resulted in a conclusion that falls outside
the band of reasonable decisions contemplated by Sidumo.
The commissioner's role in determining the fairness of dismissal
[42] The present appeal concerns the appropriateness of dismissal as a sanction.
It is therefore necessary to consider the role assigned to commissioners by
the LRA in determining the fairness of dismissal. Prior to the decision in
Sidumo, the L AC in Engen Petroleum Ltd v Commission for Conciliation,
Mediation and Arbitration and Others (Engen Petroleum)6 rejected the notion
that commissioners are required to defer to an employer's choice of sanction.
Zondo JP held, in substance, i n paragraphs 64 to 68 that the LRA requires
commissioners themselves to determine whether a dismissal is fair and that
such determination is not reserved to the employer.
[43] The Constitutional Court endorsed that approach in Sidumo
7 at paragraph 75,
where Navsa AJ held that commissioners are not required to defer to the
sanction imposed by an employer. At paragraph 78, the C ourt explained that
commissioners must consider the totality of circumstances, including the
importance of the rule breached, the reason for dismissal, the harm caused by
importance of the rule breached, the reason for dismissal, the harm caused by
the employee's conduct, the possibility of corrective discipline, the effect of
dismissal upon the employee and the employee's service record.
5 (2015) 36 ILJ 2802 (LAC) at para 33.
6 (2007) 28 ILJ 1507 (LAC) at paras 64-68.
7 Id fn 2 at para 75.
13
Furthermore, at paragraph 79, it was summed up that the commissioner must
decide whether what the employer did was fair, while at paragraph 117 the
Court reaffirmed that although the decision to dismiss belongs to the
employer, the determination of its fairness does not.
[44] Those principles have recently been applied by this Court in Arunachellam v
Woolworths (Arunachellam).8 and in Mondi South Africa (Pty) Ltd v National
Bargaining Council for Wood and Paper Sector and Others (Mondi).9 Even
where serious misconduct has been established, the commissioner is still
required to undertake an independent evaluative enquiry into whether
dismissal constitutes a fair sanction in all the circumstances. They likewise
reaffirm that a reviewing court is not entitled to interfere merely because it
would itself have imposed a different sanction.
[45] The significance of these authorities for present purposes is that the
commissioner was required to make his own determination regarding the
fairness of dismissal. The fact that the appellant regarded dismissal as
justified does not conclude the enquiry. Equally, the commissioner's
determination remains susceptible to review if it falls outside the range of
reasonable outcomes contemplated by Sidumo.
Final written warnings and the proper statutory route
[46] One of the principal grounds advanced by the appellant concerns the
commissioner's treatment of the final written warnings issued to the
employees on 9 and 10 March 2021. The appellant relies heavily upon Kock v
Commission for Conciliation, Mediation and Arbitration and Others (Kock)10 In
that matter , the Labour Court considered whether an employee could
challenge the fairness of a final written warning during subsequent dismissal
proceedings when no unfair labour practice dispute had previously been
referred.
8 (DA27/2024) [2026] ZALAC 28.
9 (DA25/24) [2026] ZALAC 20.
10 (2019) 40 ILJ 1625 (LC).
14
[47] Steenkamp J held that the LRA distinguishes between dismissal disputes and
disputes concerning disciplinary action short of dismissal. The latter constitute
unfair labour practices as contemplated in s 186(2) (b) of the LRA and must
ordinarily be pursued through the mechanisms specifically created for that
purpose. At paragraphs 46 to 49 , the Court held that where no unfair labour
practice dispute has been referred, the validity or fairness of the warning itself
is generally not open for determination in a subsequent dismissal arbitration.
The arbitrator's enquiry is ordinarily confined to whether the warning existed,
whether the employee was aware of it, whether it related to similar
misconduct and whether it remained operative at the relevant time.
[48] The appellant contends that the commissioner impermissibly entered terrain
reserved for an unfair labour practice dispute when he considered the
circumstances surrounding the issuing of the final written warnings. The
respondents, on the other hand, contend that the commissioner did not
determine the fairness or validity of the warnings but merely considered their
significance as part of the broader enquiry into the fairness of dismissal.
Whether the commissioner crossed the line identified in Kock is one of the
issues to be determined in this appeal.
Analysis
Inconsistency
[49] The first complaint advanced by the appellant is that the commissioner
improperly relied upon inconsistency in the application of discipline. The
appellant contends that inconsistency was either abandoned during the
arbitration proceedings or was not properly before the commissioner and that,
in any event, the comparators relied upon by the commissioner were not
appropriate. The issue requires consideration of two distinct aspects of the
award. The first concerns the treatment of Van Rensburg during the events of
2 March 2021. The second concerns the commissioner's reliance upon
employees who later participated in an unprotected strike.
employees who later participated in an unprotected strike.
[50] Consistency remains an important component of fairness in disciplinary
matters. It has often been described as an element of disciplinary fairness
15
flowing from the principle that like cases should generally be treated alike.
However, consistency is not an inflexible rule. As the Court observed in
Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others ,
11 consistency is the hallmark of
progressive labour relations, but it is not a principle to be applied mechanically
or without regard to the factual circumstances of individual cases.
[51] Similarly, in N UM and Another v Amcoal Colliery t/a Arnot Colliery and
Another,12 this Court recognised that inconsistency is not established merely
because different outcomes are reached. The comparison must be a proper
one and the alleged comparator must be shown to have engaged in materially
similar conduct under materially similar circumstances.
[52] Turning to the first comparator, namely Van Rensburg, the commissioner
accepted Nguqu’s evidence that, on 2 March 2021 , Van Rensburg raised
objections concerning the implementation of the staggered- break
arrangement, that discussions followed with management and that no
disciplinary action was taken against him at that stage. The commissioner
appears to have regarded this as demonstrating a different response by
management to conduct, which later resulted in disciplinary action against the
respondents. It was on that basis that he referred, at least in part, to
inconsistency in the application of discipline.
[53] The appellant contends that the commissioner misconstrued the evidence. It
submits that Van Rensburg was not guilty of the same misconduct as the
respondents and that management's engagement with him on 2 March 2021
occurred before the widespread refusal to comply that arose on 8 March
2021. According to the appellant, the circumstances were materially different
and incapable of supporting a finding of inconsistency.
[54] There is force in the submission that the events of 2 March 2021 were not
identical to those of 8 to 11 March 2021. Van Rensburg's conduct occurred
identical to those of 8 to 11 March 2021. Van Rensburg's conduct occurred
before the collective refusal that subsequently affected production and before
11 (2010) 31 ILJ 452 (LC) at para 10.
12 [2000] 8 BLLR 869 (LAC) at para 6.
16
management issued clear directives requiring compliance. It does not
necessarily follow, however, that the commissioner acted unreasonably in
considering the evidence. The question before him was not whether Van
Rensburg and the respondents occupied precisely the same position. It was
whether management's differing responses formed part of the broader matrix
of circumstances relevant to sanction.
[55] A commissioner assessing fairness is not confined to a rigid comparison of
identical factual situations. Fairness is a value- laden enquiry. The
commissioner was entitled to consider whether the manner in which
management dealt with earlier manifestations of resistance to the
arrangement formed part of the overall context within which the dismissals
occurred. The position is in relation to the second comparator relied upon by
the commissioner. At paragraph 95 of the award, the commissioner stated
that although the refusal to work staggered breaks caused losses to the
appellant, a subsequent unprotected strike caused even greater losses and
yet no disciplinary action was taken against the employees who participated
therein. He regarded that circumstance as further evidence of inconsistency.
[56] The appellant's criticism of this reasoning is not without merit. The misconduct
for which the respondents were dismissed occurred between 8 and 11 March
2021. The subsequent strike occurred thereafter and constituted a separate
event. The participants in that strike were not before the commissioner on the
same charges, nor was the disciplinary treatment of those employees the
subject of detailed evidence.
[57] Inconsistency requires a comparison between employees who are similarly
situated. The mere fact that another group of employees may have engaged
in misconduct of a different nature at a later stage does not necessarily render
disciplinary action taken against the respondents inconsistent. To that extent,
the commissioner appears to have attached weight to a consideration of
the commissioner appears to have attached weight to a consideration of
limited relevance. The latter strike did not form part of the misconduct for
which the respondents were dismissed, and absent a proper evidentiary
foundation establishing a valid comparison, it provided a fragile basis upon
which to draw conclusions regarding consistency.
17
[58] The question, however, is not whether the commissioner erred. As Herholdt ,
Gold Fields and Mofokeng make clear, the enquiry is whether any such error
materially distorted the outcome ultimately reached. The commissioner did not
rely solely upon inconsistency. His conclusion on sanction rested upon a
combination of factors which included the collective context within which the
misconduct occurred, the final written warnings, the absence of evidence
concerning intolerability and what he regarded as inconsistency in discipline.
The significance of the inconsistency finding must therefore be assessed
within the broader reasoning process reflected in the award as a whole.
[59] It is therefore necessary to consider the second major criticism advanced by
the appellant, namely the commissioner's reliance upon the collective nature
of the dispute that preceded the misconduct.
The collective context and the gravity of the misconduct
[60] The appellant's second principal complaint concerns the commissioner's
reliance upon what he regarded as the collective context within which the
misconduct occurred. The appellant contends that the commissioner
effectively treated the existence of an unresolved collective dispute as a
mitigating factor and, in doing so, materially understated the seriousness of
the employees' conduct. Mr Redding submitted that the commissioner's
approach is inconsistent with the scheme of the LRA. He argued that the LRA
provides carefully structured mechanisms through which collective disputes
may be pursued. Employees may refer disputes to conciliation and arbitration
where appropriate, and where industrial action is contemplated , the LRA
prescribes the circumstances in which a strike will enjoy statutory protection.
According to the appellant, employees are not entitled to disregard lawful
instructions merely because they are dissatisfied with working arrangements
or because a collective dispute remains unresolved.
or because a collective dispute remains unresolved.
[61] There can be little quarrel with that proposition. The existence of a dispute
does not confer upon employees a licence to ignore lawful and reasonable
instructions. Nor does the existence of an unresolved labour dispute render
insubordination permissible. The commissioner correctly found that the
18
employees were guilty of misconduct and did not suggest otherwise. The
question, however, is not whether the employees were justified in refusing to
comply with the instruction. The commissioner found that they were not. The
question is whether the commissioner was entitled to regard the context within
which the misconduct occurred as relevant to the determination of the
sanction.
[62] Insubordination strikes at the heart of the employment relationship because it
challenges managerial authority. In Sylvania Metals (Pty) Ltd v Mello N.O. and
Others,13 this Court recognised that persistent refusal to obey lawful
instructions may justify dismissal because the employment relationship
depends fundamentally upon respect for lawful managerial authority.
[63] Similarly, in Palluci Home Depot (Pty) Ltd v Herskowitz and Others ,14 this
Court reiterated that insubordination is not to be viewed lightly and that the
gravity of the misconduct depends upon the nature of the instruction, the
circumstances in which it was issued, the extent of the defiance and the
impact upon the employment relationship.
[64] These authorities undoubtedly support the appellant's submission that the
respondents' misconduct was serious. Indeed, the commissioner himself
accepted that the employees had deliberately refused to comply with a lawful
instruction and that production was adversely affected as a consequence. It
does not, however, follow that once insubordination is established, dismissal
must necessarily follow.
[65] The authorities discussed earlier , particularly Sidumo, make it plain that,
although deliberate insubordination constitutes serious misconduct capable of
justifying dismissal, sanction remains a separate enquiry. The commissioner
was therefore required to determine, independently and having regard to all
the relevant circumstances, whether dismissal constituted a fair response to
the misconduct established.
13 (JA83/2015) [2016] ZALAC 52 at paras 17-18.
the misconduct established.
13 (JA83/2015) [2016] ZALAC 52 at paras 17-18.
14 (2015) 36 ILJ 1511 (LAC) at paras 20–21.
19
[66] What emerges from paragraphs 88 and 89 of the award is that the
commissioner regarded the unresolved dispute as one of several contextual
factors relevant to sanction. He considered that the misconduct occurred
against the backdrop of an ongoing disagreement concerning the
implementation of the staggered- break arrangement and that this
circumstance formed part of the overall fairness enquiry.
[67] The appellant submits that the commissioner thereby reduced the employees'
blameworthiness without any legal basis. There is some force in the criticism.
The award does not clearly explain why the existence of the dispute materially
diminished the seriousness of deliberate insubordination. Nor does the
commissioner identify any authority supporting such a proposition.
[68] Yet the enquiry remains one of reasonableness and not correctness.
Commissioners are routinely required to consider surrounding circumstances
in assessing sanction. The existence of a workplace dispute, the history of
interactions between the parties, the conduct of management and the
industrial relations environment may all constitute part of the factual matrix
within which misconduct occurs. This is not to say that the collective dispute
excused the misconduct. It plainly did not. It is rather to recognise that a
commissioner tasked with determining fairness is entitled to consider the
context within which the misconduct occurred when deciding whether
dismissal was the appropriate response.
[69] The recent decision of this Court in Mondi
15 confirms that the existence of
serious misconduct does not render the enquiry into sanction superfluous.
The issue remains whether dismissal constituted a fair response in all the
circumstances.
[70] Viewed in isolation, the commissioner's treatment of the collective dispute
may be open to criticism. However, it cannot be said that he misconceived the
nature of the enquiry. The commissioner recognised the seriousness of the
nature of the enquiry. The commissioner recognised the seriousness of the
misconduct, accepted that the employees were guilty of insubordination and
15 Id fn 9 at para 13.
20
nevertheless concluded that dismissal was disproportionate when all relevant
circumstances were considered.
[71] The collective context was therefore not treated as a complete answer to the
misconduct. It was one of several factors the commissioner relied upon in
exercising the evaluative judgment entrusted to him under the LRA. This
brings one to the issue that occupied a substantial portion of the argument
before us, namely , the significance attached by the commissioner to the final
written warnings issued on 9 and 10 March 2021.
The final written warnings
[72] The appellant's third and arguably most substantial complaint concerns the
commissioner's treatment of the final written warnings issued to the
employees on 9 and 10 March 2021. Mr Redding submitted that the
commissioner exceeded the bounds of the enquiry before him by effectively
questioning the fairness of the final written warnings , notwithstanding the fact
that no unfair labour practice dispute had been referred challenging those
warnings. According to the appellant, the warnings remained extant and valid
at all relevant times and the commissioner was obliged to accept them as
such.
[73] The submission was founded principally upon Kock .
16 In Kock, the Labour
Court considered whether an employee could challenge the fairness of a final
written warning during a subsequent unfair dismissal arbitration when no
unfair labour practice dispute had previously been referred in terms of s
186(2)(b) of the LRA.
[74] Snyman AJ emphasised that the LRA creates distinct statutory remedies for
dismissal disputes and disputes concerning disciplinary action short of
dismissal. In paragraphs 46 to 49, the Court held that where no unfair labour
practice dispute has been referred, the validity or fairness of the warning itself
is ordinarily not open for determination in a subsequent dismissal arbitration.
The Court explained that an arbitrator dealing with a dismissal dispute is
16 Id fn 10.
21
generally concerned with whether the warning existed, whether the employee
was aware of it, whether it related to similar misconduct and whether it
remained operative. The arbitrator is not ordinarily required to determine
whether the warning itself was fairly issued.
[75] Relying upon these principles, the appellant submitted that the commissioner
crossed the line identified in Kock . Particular reliance was placed upon
paragraph 90 of the award, where the commissioner stated:
‘A Final Written Warning is the penultimate sanction short of dismissal. It
ought to be issued as a result of a fair process...’
The appellant contends that by embarking upon an assessment of the
process that preceded the issuing of the warnings, the commissioner
effectively adjudicated the fairness of disciplinary action that had never been
referred for determination.
[76] There is substance in the submission that the commissioner was not
empowered to determine an unfair labour practice dispute that was never
referred to him. Had the commissioner found that the warnings were invalid,
unfair, or of no force and effect, serious questions would have arisen as to
whether he had exceeded his jurisdiction. However, that is not what the
commissioner did. Properly construed, the award does not purport to set
aside the warnings. Nor does it contain a finding that the warnings were unfair
or invalid. The commissioner did not direct that they be withdrawn, expunged,
or disregarded. Indeed, nowhere in the award does he purport to exercise
powers associated with the adjudication of an unfair labour practice dispute.
[77] Instead, the commissioner accepted the existence of the warnings and treated
them as part of the factual matrix relevant to the determination of sanction.
The distinction is important. The issue before the commissioner was not
whether the warnings should have been issued. The issue was whether
dismissal constituted a fair sanction in circumstances where warnings were
dismissal constituted a fair sanction in circumstances where warnings were
issued on 9 and 10 March 2021, suspensions followed on 11 March 2021,
and dismissal ensued thereafter.
22
[78] The commissioner appears to have regarded the chronology as significant.
He expressed concern regarding the speed with which disciplinary escalation
occurred and the extent to which the corrective purpose ordinarily associated
with progressive discipline could realistically have been achieved before
dismissal followed. In my view, the commissioner was entitled to consider
those matters. The fairness enquiry contemplated by s 188 of the LRA is
necessarily broader than a determination of whether a warning formally exists.
Once the employer relies upon the existence of a warning as a factor
aggravating subsequent misconduct and justifying dismissal, the significance
of that warning becomes relevant to the assessment of sanction.
[79] The appellant's own disciplinary case illustrates the point. The employees
were not dismissed merely for refusing to comply with an instruction. The
appellant relied heavily on the fact that they persisted in their conduct after
receiving final written warnings for substantially the same misconduct. The
commissioner was therefore entitled to consider the significance of those
warnings as part of the disciplinary progression relied upon by the appellant,
provided that he did not purport to determine their validity or fairness as a
separate unfair labour practice dispute.
[80] That is not to diminish the importance of Kock . The distinction drawn in that
case remains valid. A commissioner may not convert an unfair dismissal
arbitration into an unfair labour practice arbitration under the guise of
considering sanction. The question is one of characterisation. Did the
commissioner determine the fairness of the warnings themselves, or did he
merely consider their significance within the broader enquiry concerning the
fairness of dismissal?
[81] Read as a whole, the award supports the latter interpretation. The
commissioner did not invalidate the warnings. He considered them as one of
commissioner did not invalidate the warnings. He considered them as one of
several factors relevant to sanction . Whether one agrees with the weight he
attached to that factor is a different matter. What matters for present purposes
is that he did not, in my view, exceed the bounds of the dispute referred to
arbitration.
23
[82] The appellant is therefore correct to submit that the final written warnings
remained operative and were never challenged through the statutory
mechanisms created for that purpose. It does not follow, however, that the
commissioner was precluded from considering the circumstances surrounding
those warnings when undertaking the broader fairness enquiry required by
Sidumo and Engen. The final written warning must therefore be evaluated
together with the commissioner's other reasons for concluding that dismissal
was inappropriate. The question remains whether, viewed cumulatively, those
reasons produced a result that falls outside the range of reasonable outcomes
contemplated by the LRA.
Was the commissioner's conclusion on sanction reasonable?
[83] Having considered the appellant's criticisms individually, it is necessary to
return to the enquiry mandated by Sidumo , Herholdt, Gold Fields and
Mofokeng. The question is not whether every aspect of the commissioner's
reasoning was beyond criticism. Nor is it a question of whether this Court
would itself have imposed dismissal. The question is whether the
commissioner's ultimate conclusion falls outside the band of decisions
reasonably available to a decision- maker entrusted with determining the
fairness of dismissal.
[84] The appellant's submissions correctly emphasise the seriousness of the
misconduct. The employees deliberately refused to comply with a lawful and
reasonable instruction. The refusal affected production and persisted
notwithstanding repeated efforts by management to secure compliance. The
commissioner expressly accepted those facts and correctly found the
employees guilty of insubordination. The appellant is also correct in
contending that portions of the commissioner's reasoning are open to
criticism.
[85] In particular, the commissioner's reliance on paragraph 95 of the award upon
the treatment of employees who later participated in an unprotected strike is
the treatment of employees who later participated in an unprotected strike is
problematic. The strike occurred after the misconduct for which the
respondents were dismissed and involved a different factual matrix. The
24
evidential basis for treating those employees as proper comparators was
limited. To that extent, the commissioner attached weight to a consideration of
doubtful relevance.
[86] Equally, the commissioner ’s treatment of the collective dispute is not entirely
free from difficulty. Whilst the existence of an unresolved workplace dispute
formed part of the factual context within which the misconduct occurred, the
award does not fully explain why that circumstance materially reduced the
seriousness of deliberate insubordination. The appellant's criticism in this
regard is not without substance. Yet neither of those observations concludes
the review enquiry.
[87] As was explained in Herholdt and Mofokeng, a review is not directed at the
correctness of every step in the reasoning process. Errors, misconceptions
and irregularities warrant intervention only where they are material to the
result and produce an outcome that no reasonable decision- maker could
reach. The award must therefore be considered as a whole.
[88] The commissioner did not ignore the seriousness of the misconduct. Nor did
he conclude that the employees were justified in refusing to comply with the
instruction. On the contrary, he found them guilty of insubordination. The
commissioner nevertheless concluded that dismissal was too harsh a
sanction when all relevant circumstances were considered. Amongst those
circumstances were the unresolved dispute concerning the implementation of
the staggered- break arrangement, the manner in which earlier resistance to
that arrangement had been addressed, the final written warnings issued
immediately prior to dismissal and the absence of evidence demonstrating
that continued employment had become intolerable.
[89] The appellant criticised the commissioner's reliance upon the absence of
evidence concerning the breakdown of the employment relationship. It is true
that proof of intolerability is not a jurisdictional prerequisite for dismissal based
that proof of intolerability is not a jurisdictional prerequisite for dismissal based
on insubordination. However, the existence or absence of evidence
concerning the breakdown of trust remains a relevant consideration in
25
determining the appropriateness of dismissal. It was therefore a factor the
commissioner was entitled to take into account.
[90] Of particular significance is that the commissioner was engaged in the
evaluative exercise entrusted to him by the LRA. The enquiry before this
Court is therefore not whether dismissal was the sanction this Court would
itself have imposed, but whether the commissioner's conclusion falls outside
the range of reasonable outcomes open to a commissioner performing that
statutory function.
[91] The appellant's submissions, although forcefully advanced, ultimately invite
this Court to substitute its own assessment of sanction for that of the
commissioner. That is not the function of a review court. A commissioner may
reasonably conclude that dismissal is inappropriate even where the
misconduct is serious. The existence of a different outcome that may equally
have been reasonable does not render the commissioner's conclusion
reviewable.
[92] The recent authorities of this Court reinforce that principle. In Arunachellam ,
17
this Court emphasised the centrality of the sanction enquiry in dismissal
disputes. In Mondi,18 the LAC reiterated that a finding of misconduct does not
automatically dictate dismissal and that commissioners remain required to
determine whether dismissal constitutes a fair response in the circumstances.
[93] Once it is accepted that the commissioner was entitled to consider the
broader context of the dispute, the significance of the disciplinary progression
and the evidence concerning the employment relationship, it cannot be said
that his conclusion was disconnected from the evidence before him. Whether
another commissioner may have imposed dismissal is not the issue. The
issue is whether the conclusion reached falls outside the range of decisions
reasonably open to a commissioner performing the task assigned by the LRA.
In my view, it does not.
17 Id fn 6.
18 Id fn 7.
26
[94] The commissioner may have overstated the significance of certain
considerations, particularly the treatment of employees involved in the later
strike. However, those considerations did not constitute the sole foundation of
the award. They formed part of a broader evaluative exercise directed at
determining the fairness of dismissal. Viewed holistically, and having regard to
the totality of the evidence and the reasons furnished by the commissioner, I
am unable to conclude that the award falls outside the band of reasonable
outcomes contemplated by Sidumo . The Labour Court , therefore, cannot be
faulted for concluding that the appellant failed to establish a reviewable
irregularity.
Subsequent closure of the appellant's manufacturing operations
[95] During argument, the parties informed the court that the appellant ceased its
South African manufacturing operations during or about August 2025. The
issue arose in the context of the practical consequences of the reinstatement
order granted by the commissioner. Mr Grogan submitted that, should the
appeal fail, the employees ought not to be deprived of the fruits of the award
merely because the appellant subsequently ceased operations. Mr Redding,
on the other hand, submitted that the consequences of the closure were not
matters properly before this Court and that no application had been brought to
adduce further evidence or vary the relief granted.
[96] The closure of the appellant's manufacturing operations occurred long after
the award and the review proceedings. It played no role in the commissioner's
determination and is irrelevant to the merits of the appeal. Furthermore, the
legal consequences of the closure, including any questions concerning the
implementation of the reinstatement order, impossibility of performance,
severance arrangements, or any entitlement to compensation, do not arise on
the present record and were not the subject of any formal application before
the present record and were not the subject of any formal application before
this Court. It is therefore unnecessary and inappropriate to express any view
on those issues. They remain matters to be determined, if necessary, in
appropriate proceedings.
Costs
27
[97] Section 162 of the LRA confers a broad discretion on this Court to make
orders for costs in accordance with the requirements of law and fairness. In
Zungu v Premier of the Province of KwaZulu- Natal and Others ,19 the
Constitutional Court reaffirmed that there is no general rule that costs follow
the result in labour matters and emphasised that costs must be determined in
accordance with the requirements of law and fairness. The c ourt cautioned
against making adverse costs orders that may discourage parties from
vindicating labour rights. Although the appeal has not succeeded, the issues
raised were neither frivolous nor vexatious. The appeal concerned the proper
limits of a commissioner's sanction enquiry and raised important questions
concerning inconsistency, collective misconduct and the treatment of final
written warnings. In those circumstances, considerations of fairness dictate
that no order as to costs should be made.
[98] In the result, the following order is made:
Order
1. The appeal is dismissed.
2. There is no order as to costs.
______________________
MBS Masipa
Acting Judge of the Labour Appeal Court of South Africa
Tokota AJA and Moshoana AJA concur.
APPEARANCES:
19 2018 39 ILJ 523 (CC) paras 23- 24.
28
For the Appellant : A Redding SC with M Jacobs
Instructed by: Chris Baker & Associates, Gqeberha
For the First Respondent : J G Grogan with L Voultsos
Instructed by: Pagdens Incorporated Attorneys,
Gqeberha