IN THE CCMA

HELD AT CCMA Cape Town

CASE NO: WECT: 14692-24

In the matter between:

Kim Raats	Applicant
And
CIPLA (Medpro Pharmaceutrica (Pty) Ltd)	Respondent

Applicant’s final submissions

Overview and brief summary

Brief overview of applicant’s argument

It is submitted that applicant has been unfairly dismissed by respondent because her dismissal is both substantively and procedurally unfair, and that the ‘charges’ against her are legally unsustainable.

Background:
The Applicant is an experienced Events Organiser, responsible for inter alia approximately 15 concurrent events, while also preparing to take 14 days of approved overseas annual leave. She has been a dedicated, professional, and reliable employee throughout her tenure [of about 19 years].

Charge 1 – Negligence:

Respondent alleges negligence for her alleged failure to respond to a request to source quotations for an internal conference nine months away. Critically, this request came from another senior employee, not her line manager.

• • Legally, negligence requires a clear duty, unreasonable conduct, and foreseeable harm. None of these exist here.
  • The task was non-urgent; no harm occurred and no operational risk arose.
  • Applicant was inter alia managing inter alia 15 events simultaneously, and preparing for approved annual overseas leave — entirely reasonable circumstances.

It is submitted that this does not meet the standard of negligence, and it certainly does not justify summary dismissal, which is reserved for gross, reckless, or intentional disregard of duties.

Charge 2 – Insolence:

Respondent also claims applicant was insolent in an email concerning vendor management.

• • The email expressed concern about processes and vendor quality.
  • While it was candid, it was professional, not abusive.
  • Crucially, the Applicant complied with the instruction: “As per your instruction, we will action this immediately.”

Legally, questioning a decision or providing honest feedback is not insolence or insubordination. It is legitimate engagement within her role.

Procedural Unfairness:

Even if there were minor issues — which there are not — the dismissal was procedurally unfair:

• • Applicant was summarily dismissed without proper investigation.
  • There were no valid prior warnings.
  • No consideration was given to workload, leave, or line management authority.
  • The “punishment” is clearly disproportionate to the alleged conduct.

Conclusion & Remedy:

It is submitted that the purported summary dismissal is both substantively and procedurally unfair. The charges are legally unsustainable, and the applicant has suffered considerable undue prejudice.

Applicant respectfully request that the Commission order:

1. 1. Reinstatement with full backpay, or alternatively,
   2. Compensation of not less than 12 months remuneration in accordance with the LRA;
   3. Reasonable damages; and
   4. Costs.

Facts

Employment history and background

See the agreed facts contained in the Pre-arb Minute dated 27 November 2025.

Annex “C”.

Omitted therefrom due to a ‘misunderstanding’ between the attorneys is the undisputed fact that applicant was on annual leave in the USA with her husband during the period 3 – 19 May 2024.

As will appear from applicant’s

Bundles “B1”& “B2”:

• • Applicant commenced employment in January 2006;
  • On 6 June 2024 applicant was ‘charged’ with 2 ‘offences’ but was never suspended nor placed on ‘garden leave’;
  • Throughout all the processes respondent refused or failed to allow applicant the right to be legally represented;
  • Respondent engaged the services of LabourNet to conduct an enquiry;
  • The proceedings started on 7 June and concluded on 28 June 2024;
  • LabourNet recommended a final written warning on 3 July 2024;
  • Respondent disregarded that “recommendation’;
  • Respondent refused or failed to allow applicant the right to be heard prior thereto;
  • Applicant was purportedly summarily dismissed on 8 July 2024;
  • Applicant duly appealed to an external advocate selected by respondent on 12 & 29 July 2024;
  • The appeal took place on 30 July 2024;
  • All proceedings were recorded with prior permission;
  • Transcripts thereof are contained in Bundle “B2”;
  • The appeal was disallowed on 6 August 2024;
  • Applicant’s attorney of record has verified the transcribed versions on oath.

Annexure “E”

CCMA

On 27 August 2024 applicant referral a dispute to the CCMA

Bundle B1 pp 62-67;

Annexed to that referral were applicant’s grounds, including the facts and arguments and relief sought.

Bundle B1 pp 68-70;

In addition applicant’s personal circumstances were listed.

On 10 September 2024 the CCMA set the matter down for con/arb on 25 September 2024.

Bundle B1 pp 71-73

Respondent objected in writing to any arbitration being conduct if conciliation failed.

A certificate of outcome was issued by CCMA on 25 September 2024 with a directive to refer it to arbitration.

Bundle B1 pp 74

On 14 May 2025 the CCMA set it down for arbitration on 9 June 2025.

Bundle B1 pp 77-80

However, the matter did not proceed because of a ‘misunderstanding’ between the legal representations regarding the preparation of agreed bundles.

Applicant then instituted proceedings in the labour court ito sec 77(3) of the  BCEA based on the alleged unlawful termination of her employment.

The current arbitration duly took place after applicant applied unsuccessfully to transfer the dispute to the labour court.

Law

Meaning of hearing (right to be heard)

Avril Elizabeth Home for the Mentally Handicapped v CCMA (JR782/05) [2006] ZALC 44; [2006] 9 BLLR 833 ; (2006) ILJ 1644 (LC) (14 March 2006) per A van Niekerk J (now JA)

The labour court decided that employers and senior management should avoid formal enquiries in workplaces because the continued application of the criminal justice model of workplace procedure results in a duplication of process, with no tangible benefit to either employer or employee.

“The rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model of procedural fairness. They recognise that for workers, true justice lies in a right to an expeditious and independent review of the employer’s decision to dismiss, with reinstatement as the primary remedy when the substance of employer decisions are found wanting.

For employers, this right of resort to expeditious and independent arbitration was intended not only to promote rational decision making about workplace discipline, it was also an acknowledgement that the elaborate procedural requirements that had been developed prior to the new Act were inefficient and inappropriate, and that if a dismissal for misconduct was disputed, arbitration was the primary forum for determination of the dispute by the application of a more formal process.

The balance struck by the LRA thus recognises not only that managers are not experienced judicial officers, but also that workplace efficiencies should not be unduly impeded by onerous procedural requirements. It also recognises that to require onerous workplace disciplinary procedures is inconsistent with a right to expeditious arbitration on merits.

Where a commissioner is obliged (as commissioners are) to arbitrate dismissal disputes on the basis of the evidence presented at the arbitration proceedings, procedural requirements in the form that they developed under the criminal justice model are applied ultimately only for the sake of procedure, since the record of a workplace disciplinary hearing presented to the commissioners at any subsequent arbitration is presented only for the purpose of establishing that the dismissal was procedurally fair.

The continued application of the criminal justice model of workplace procedure therefore results in a duplication of process, with no tangible benefit to either employer or employee.”

Sidumo review test

SA Breweries (Pty) Ltd v HH (CA6/2016) [2017] ZALAC 33 ; [2017] 9 BLLR 892 ; (2017) ILJ 1766 (LAC) (25 May 2017) per Kathree-Setiloane AJA (Davis JA and Hlophe AJA concurring)

“It is that an arbitration award is reviewable if the decision reached by the arbitrator was one that a reasonable decision-maker could not reach.  Essentially, this test requires the Labour Court, sitting as a court of review, to enquire whether the decision under review is one that a reasonable decision-maker could not reach on the evidential material available.”

Binding effect of judgments

The CCMA being a creature of statute is bound by all decisions of the courts, including labour court and labour appeal court.

Purpose of pre-arb minute

TM v Health, Kwazulu-Natal (DA33/2022) [2024] ZALAC 38 [2024] 11 BLLR 1111; (2024) ILJ 2681; [2024] JOL 66445 (LAC) (22 August 2024) per Nkutha-Nkontwana JA (Van Niekerk JA and Govindjee AJA concurring)

There is real purpose in having pre-arbitration minute and agreed scope may only be exceeded in exceptional circumstances.

Onus of proof

Applicant had the right not to be unfairly dismissed and subject to what is set out herein regarding the complications relating to ‘dismissal’, respondent must prove on balance of probabilities that the reason for the ‘dismissal’ was [valid] and fair.

Negligence

Meaning:
A failure to take reasonable care that a reasonable person would in the circumstances.

Key points:

• • Usually refers to carelessness, not deliberate behaviour.
  • Common in law (delict/tort, medical negligence, professional negligence).
  • Focus is on whether someone failed to meet the standard of care.

Example:
A doctor misreads a chart because they didn’t check properly → negligence.

Here are the South African legal definitions, case examples, and quick tests—all in very compact form.

South African Legal Definitions

Negligence (kwaadwillige nalatigheid / nalatigheid)

Legal test: The reasonable person test.
A person is negligent if:

1. A reasonable person would foresee harm,
2. Would take reasonable steps to prevent it,
3. And the person failed to take those steps.

Focus:
→ Carelessness in performing an act.
→ Usually single acts or omissions causing harm.

Insolence or disrespect

KAJ v SA Medical & Education Foundation NPC (C611/2022) [2025] ZALCCT 104 (17 October 2025) per T Gandidze J.

An employee was dismissed for gross insubordination after allegedly telling the Chief Executive Officer, “screw you,” and repeating the phrase. The employee denied saying the words, claiming instead that the CEO had said them to her. The commissioner rejected the employee’s version and found the dismissal fair. On review, the court noted that the commissioner’s factual findings were not challenged and held that the decision was reasonable. The application to review the award was therefore dismissed.

Summary of [42]–[47]:

• Fine distinction:
  • Palluci established that there is a fine line between insolence (disrespect) and insubordination (defiance of authority).
  • Insolence can become insubordination when it is serious, persistent, and a deliberate challenge to authority.
• Factors to assess insubordination:
  • Wilfulness of the employee’s defiance.
  • Reasonableness of the instruction or authority challenged.
  • The employer’s actions prior to the alleged insubordination.
• Authority relied on – Sylvania Metals (2016)
  • Defined insubordination as a wilful and serious refusal to obey lawful instructions or conduct that deliberately challenges authority, even without an instruction.
  • In Sylvania, the employee’s aggressive, rude, and defiant behaviour — walking out of a meeting and refusing instructions — amounted to serious misconduct and justified dismissal.
• Application to this case:
  • The commissioner understood the distinction between insolence and insubordination.
  • Found the applicant’s initial aggression and refusal to accept a warning were insolent.
  • Her later conduct — telling the CEO “screw you” publicly and repeating it — escalated to insubordination, being a wilful and serious challenge to the CEO’s authority.
  • The commissioner viewed the phrase as more than a minor swear word because it was public, repeated, and undermined leadership.
  • Court’s conclusion:
    • Saying “screw you” to the CEO in front of others was a serious, wilful challenge to authority.
    • Even if the applicant felt provoked, it did not justify her response.
    • The commissioner’s conclusion that the conduct moved from insolence to insubordination was reasonable.
    • Even if it had been a classification error, under Mofokeng, such an error would not invalidate the award unless it distorted the outcome, which it did not.

Palluci Home Depot (Pty) Ltd v H (CA21/13) [2014] ZALAC 81; [2015] 5 BLLR 484 ; (2015) ILJ 1511 (LAC) (12 December 2014) per Kathree-Setiloane AJA (Musi JA and John Murphy AJA concurring).

“[20] The refusal by an employee to carry out an employer’s instruction is, therefore, not always required for a finding of insubordination. However, the failure of the Labour Court to recognise this did not, in my view, influence its characterisation of the conduct of the first respondent, on the evidence led at the arbitration hearing in relation to charge A, as constituting “insolence” as opposed to “insubordination”.

In characterising the first respondent’s conduct as “insolence”, the Labour Court relied upon the decision of Wooltru, which emphasises the importance of distinguishing insubordination from insolence simply because they are different offences.

Wooltru equates

• the offence of insolence with conduct which is offensive, disrespectful, impudent, cheeky, rude (disrespectful in speech or behaviour), insulting or contemptuous, and
• insubordination with “resistance to or defiance of authority; disobedience, and refusal to obey an order of a superior”.

Wooltru makes it clear that although an employee can be both insolent and insubordinate at the same time, he or she can be insolent without necessarily being insubordinate.

Notably, the Court in Wooltru held that a mere disrespect for the employer (or insolence, impudence, cheekiness or rudeness) cannot, on its own, constitute insubordination which by its very nature requires disobedience or an outright challenge to authority.

Insubordination it observed:

“can manifest itself in the refusal to obey a reasonable and lawful command or in the challenge (or resistance) to or defiance of (see especially The Shorter Oxford Dictionary above) the authority of the employer.

It is of course required that insubordination must be deliberate (wilful) and serious (above).

This is not to say contemptuousness of authority (insolence, impudence, cheekiness, disrespect or rudeness) cannot constitute a ground of dismissal (provided, of course, that it is wilful and serious).

One should, however, always distinguish between insubordination on the one hand and insolence on the other hand because they are definitely not the same kind of offence.”

Core Difference between insolence and disrespect

Disrespect (general behaviour)

Meaning:
Any behaviour that shows lack of respect, courtesy, or consideration.

Key points:

• • Broad, everyday concept.
  • Not always disciplinary.
  • Can be passive or subtle (tone, eye-rolling, interrupting).
  • Does not necessarily challenge authority.

Example:
Being curt, rolling eyes, using an unfriendly tone.

Insolence (disciplinary concept)

Meaning:
Disrespectful conduct that undermines or challenges authority or dignity of the employer, supervisor, or the employment relationship.

Key points:

• • Legal/disciplinary category.
  • More serious than ordinary disrespect.
  • Shows defiance, contempt, or affront toward authority.
  • Actionable misconduct if it damages trust or working relationship.

Example:
Dismissing a manager with “I don’t care what you think” in a hostile tone.

Short Summary

• • Disrespect = broad rudeness or impoliteness.
  • Insolence = disrespect + an element of undermining authority, making it misconduct.

When disrespect becomes insolence

Use this threshold test:

1. Was the comment/tone rude or discourteous?
   → Disrespect.
2. Did it undermine, challenge, or show contempt for managerial authority?
   → Insolence.
3. Did it affect trust or render continued employment difficult?
   → Insolence serious enough for sanction.

Examples

Disrespect (not insolence yet):

• • “I’m busy right now” said impatiently.
  • Eye-rolling, sighing, slamming drawers.
  • Speaking in a sharp/irritated tone.
  • Interrupting someone repeatedly.

Insolence (disciplinary misconduct):

• • “I’m not here to listen to your nonsense.”
  • “You don’t know what you’re doing, leave me alone.”
  • Referring to a manager with derogatory language.
  • Publicly mocking or belittling a supervisor.

Important Distinction from Insubordination

• • Insolence = disrespect.
  • Insubordination = refusal to obey lawful instruction.
    They often overlap, but are not the same.

KAJ v SA Medical & Education Foundation NPC (C611/2022) [2025] ZALCCT 104 (17 October 2025) per T Gandidze J.

An employee was dismissed for gross insubordination after allegedly telling the Chief Executive Officer, “screw you,” and repeating the phrase. The employee denied saying the words, claiming instead that the CEO had said them to her. The commissioner rejected the employee’s version and found the dismissal fair. On review, the court noted that the commissioner’s factual findings were not challenged and held that the decision was reasonable. The application to review the award was therefore dismissed.

Summary of [42]–[47]:

• Fine distinction:
  • Palluci established that there is a fine line between insolence (disrespect) and insubordination (defiance of authority).
  • Insolence can become insubordination when it is serious, persistent, and a deliberate challenge to authority.
• Factors to assess insubordination:
  • Wilfulness of the employee’s defiance.
  • Reasonableness of the instruction or authority challenged.
  • The employer’s actions prior to the alleged insubordination.
• Authority relied on – Sylvania Metals (2016)
  • Defined insubordination as a wilful and serious refusal to obey lawful instructions or conduct that deliberately challenges authority, even without an instruction.
  • In Sylvania, the employee’s aggressive, rude, and defiant behaviour — walking out of a meeting and refusing instructions — amounted to serious misconduct and justified dismissal.
• Application to this case:
  • The commissioner understood the distinction between insolence and insubordination.
  • Found the applicant’s initial aggression and refusal to accept a warning were insolent.
  • Her later conduct — telling the CEO “screw you” publicly and repeating it — escalated to insubordination, being a wilful and serious challenge to the CEO’s authority.
  • The commissioner viewed the phrase as more than a minor swear word because it was public, repeated, and undermined leadership.

• • Court’s conclusion:
    • Saying “screw you” to the CEO in front of others was a serious, wilful challenge to authority.
    • Even if the applicant felt provoked, it did not justify her response.
    • The commissioner’s conclusion that the conduct moved from insolence to insubordination was reasonable.
    • Even if it had been a classification error, under Mofokeng, such an error would not invalidate the award unless it distorted the outcome, which it did not.

 Palluci Home Depot (Pty) Ltd v H (CA21/13) [2014] ZALAC 81; [2015] 5 BLLR 484 ; (2015) ILJ 1511 (LAC) (12 December 2014) per Kathree-Setiloane AJA (Musi JA and John Murphy AJA concurring).

“[20] The refusal by an employee to carry out an employer’s instruction is, therefore, not always required for a finding of insubordination. However, the failure of the Labour Court to recognise this did not, in my view, influence its characterisation of the conduct of the first respondent, on the evidence led at the arbitration hearing in relation to charge A, as constituting “insolence” as opposed to “insubordination”.

In characterising the first respondent’s conduct as “insolence”, the Labour Court relied upon the decision of Wooltru, which emphasises the importance of distinguishing insubordination from insolence simply because they are different offences.

Wooltru equates

• • the offence of insolence with conduct which is offensive, disrespectful, impudent, cheeky, rude (disrespectful in speech or behaviour), insulting or contemptuous, and
  • insubordination with “resistance to or defiance of authority; disobedience, and refusal to obey an order of a superior”.

Wooltru makes it clear that although an employee can be both insolent and insubordinate at the same time, he or she can be insolent without necessarily being insubordinate.

Notably, the Court in Wooltru held that a mere disrespect for the employer (or insolence, impudence, cheekiness or rudeness) cannot, on its own, constitute insubordination which by its very nature requires disobedience or an outright challenge to authority.

Insubordination it observed:

“can manifest itself in the refusal to obey a reasonable and lawful command or in the challenge (or resistance) to or defiance of (see especially The Shorter Oxford Dictionary above) the authority of the employer.

It is of course required that insubordination must be deliberate (wilful) and serious (above).

This is not to say contemptuousness of authority (insolence, impudence, cheekiness, disrespect or rudeness) cannot constitute a ground of dismissal (provided, of course, that it is wilful and serious).

One should, however, always distinguish between insubordination on the one hand and insolence on the other hand because they are definitely not the same kind of offence.”

Disregarding recommendation

Cipla’s Code does not allow it to disregard the recommendations of LabourNet.

References from Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 7th ed (2023) pages 536-8

“Once a duly appointed chairperson has made factual findings the employer, unless permitted to do so by the disciplinary code, cannot review those findings without fresh information and allowing the employees to be heard.343 Such an alteration of a sanction is not  merely a procedural irregularity but a substantively unfair act and thus invalid.344“

Footnotes:

fn 343 Botha v Gengold Ltd [1996] 4 BLLR 441 (IC) 450F–G.

In Tshivhandekano v Minister of Mineral Resources [2018] 6 BLLR 628 (LC) it was held that the employer’s decision to alter the sanction passed down by the  presiding officer from a final written warning to dismissal, without affording the employee a further hearing, was both ultra vires and in breach of the employee’s contract of employment.

See also County Fair Foods (Pty) Ltd v CCMA [2003] 2 BLLR 134 (LAC) paras 22–23,

Beyers v Anglo American Platinum Ltd [2020] 2 BLLR 173 (LC);

Anglo American Platinum Ltd (Rustenburg Platinum Mines) v Beyers [2021] 10  BLLR 965 (LAC).

fn 344 SARS v CCMA [2016] 3 BLLR 297 (LAC). See also SARS v CCMA [2014] 1 BLLR 44 (LAC). “

Trust & confidence

Council for Scientific and Industrial Research v Fijen (SCA 314/94) [1995] ZASCA 143; 1996 (2) SA 1 (SCA); [1996] 2 All SA 379 (A); [1996] 6 BLLR 685 (AD) (24 November 1995)

“It is that in every contract of employment there is an implied term that the employer will not, without reasonable and probable cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties.

This implied term may be breached without the intention to repudiate the contract. It is sufficient if the effect of the employer’s conduct as a whole, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it. 

See Halsbury’s Laws of England, 4th edition (reissue) par 44 and the cases there cited.

He submitted that a reciprocal duty rests on the employee although he was not able to quote any English authority to that effect. These principles, he said, apply in our law.

It is well established that

• • the relationship between employer and employee is in essence one of trust and confidence and
  • that, at common law, conduct clearly inconsistent therewith entitles the “innocent” party to cancel the agreement
  • (Angehrn and Piel v Federal Cold Storage Co Ltd1908 TS 761 at 777-778.)

On that basis it appears to me that our law has to be the same as that of English law and also that a reciprocal duty as suggested by counsel rests upon the employee.”

Progressive discipline

Goodyear SA (Pty) Ltd v CCMA (54 employees) (PR142/22) [2024] ZALCPE 41 (6 November 2024) per MR Makhura J.

“They were dismissed because of their prior final written warnings.

[49] Mr Grogan, appearing for the employees, submitted that there was nothing unreasonable with the commissioner’s finding. He argued that the commissioner was required to consider the final written warnings and the circumstances leading to the issuance thereof.

For this submission, Mr Grogan referred this Court to a judgment of the LAC [per Peter Combrinck JA with Ray Zondo and GS Giles as assessors] in Changula v Bell Equipment (1992) ILJ 101 (LAC)

In that judgment, the LAC warned against mechanically following or applying the disciplinary code as if it were an immutable set of commandments.

The LAC criticised the Industrial Court for failing to take into account the circumstances that led to the issuing of the final written warning, which was used as a basis for dismissing the employee in the subsequent disciplinary proceedings.

The LAC held that:

‘In our view the appeal tribunal was wrong in concluding in these circumstances that, because the appellant had acquiesced in the final warning, no further regard need to have been given to the circumstances which gave rise to it. The industrial court also erred in holding that the respondent was within its rights to issue the final written warning following upon collective employee protest.

As already indicated the original accusation and disciplinary action was unreasonable, unfair and unjustified and consequently vitiated all subsequent acts following thereon…

It must be emphasized that it is not intended in this judgment to lay down a general rule that employers when disciplining employees must reopen and reconsider previous disciplinary cases against the employee. In the present case the previous disciplinary action was made an issue by the appellant at his appeal hearing in June 1988, was placed in issue on the pleadings in this case and constituted one of the findings of the industrial court.’

Amcu obo M v CCMA (JR 2266/17) [2023] ZALCJHB 23 [2023] 5 BLLR 403; (2023) ILJ 1046 (LC) (13 February 2023) per P. Nkutha-Nkontwana J

LC adopted principle of applying progressive discipline instead of terminating employment and reinstated 4 employees with full backpay for 5 years.

Backpay

Amcu obo M and others v CCMA (JR 2266/17) [2023] ZALCJHB 23 [2023] 5 BLLR 403; (2023) ILJ 1046 (LC) (13 February 2023) per P. Nkutha-Nkontwana J

LC adopted principle of applying progressive discipline instead of terminating employment and reinstated 4 employees with full backpay for 5 years.

ILO Convention: ILO Committee of Experts: Clarifying conduct

The ILO Committee of Experts interprets “conduct” in Convention No. 158 as the employee’s behaviour in relation to the employment relationship, distinct from capacity or economic reasons.

It must be genuinely connected to the job, serious enough to justify dismissal, and procedurally fair.

 2. Proportionality of sanction

The Committee has repeatedly stressed that not every form of misconduct can justify dismissal.

Example: An isolated case of lateness, or a minor act of rudeness, would not normally justify dismissal, but rather a warning.

Dismissal is only acceptable where the conduct is serious enough to make continued employment “reasonably impossible.”

 3. Distinguishing conduct from capacity

A worker dismissed for poor performance cannot be said to have been dismissed for “conduct” unless there is deliberate neglect, recklessness, or refusal to carry out duties.

Example: If a worker fails to meet targets because of lack of training → that’s “capacity.”

If a worker deliberately refuses to follow lawful instructions → that’s “conduct” (insubordination).

Balancing interests

BLK Monitoring & Inspectorate CC v MP + 36 others (JA28/23) [2025] ZALAC 63 (26 November 2025) per Nkutha-Nkontwana JA (van Niekerk JA and Basson AJA concurring)

LAC held that reinstatement was practically impossible and awarded compensation.

The dismissal of the employee was found to be substantively unfair. However, when determining the appropriate remedy under section 193(1) and (2) of the Labour Relations Act, the commissioner considered the objective facts and concluded that the circumstances surrounding the dismissal rendered the continuation of the employment relationship intolerable. Despite the unfairness of the dismissal, the severity of the breakdown in trust and the respondent’s conduct justified a departure from reinstatement as the primary remedy.

On appeal, the court agreed with the commissioner’s assessment. The appeal succeeded, the Labour Court’s order was set aside, and it was replaced with an order dismissing the review application.

Golden Arrow Bus Services (Pty) Ltd v CCMA (CA10/2024) [2025] ZALAC 38  [2025] 9 BLLR 915; (2025) ILJ 2093 (LAC) (19 June 2025) per Kate Savage JA (Musi and Waglay AJJA concurring)

“[5]  Aggrieved with his dismissal, the respondent referred a dispute to the first respondent, the Commission for Conciliation, Mediation and Arbitration (CCMA). The dispute was not settled at conciliation. At arbitration, his dismissal was found to be unfair and, despite seeking reinstatement, he was awarded 12 months’ compensation. The respondent thereafter sought the review of the arbitration award in the Labour Court. On review, the Labour Court set aside the compensation award and ordered the respondent’s retrospective reinstatement. It is against that order that the appellant, with the leave of the Labour Court, now appeals.”

Reinstatement as primary remedy:

Reinstatement is the default remedy in unfair dismissal cases.

Section 193(2) sets out exceptions where reinstatement need not be ordered (e.g., intolerability, impracticality).

Commissioner’s discretion:

Even without proven misconduct, commissioners must assess appropriate relief under s193(2).

Relevant factors and evidence must be considered to determine if reinstatement is inappropriate.

High threshold for intolerability (Booi case):

“Intolerable” means unbearable, not merely difficult or sour relationships.

Employers must show weighty reasons and tangible evidence to prove intolerability.

The purpose of reinstatement is to restore the employment relationship for unfairly dismissed employees.

Heightened burden if employee is exonerated:

If the employee is cleared of all charges, the evidentiary burden increases.

Without a finding of wrongdoing, denying reinstatement may be grossly unfair.

Booi warning:

Simply repeating evidence already rejected as insufficient for dismissal does not meet the intolerability threshold.

Limited grounds for review interference:

If a commissioner reasonably considered all evidence and made a value judgment, courts should not readily interfere.

Labour Court can only intervene if the decision:

Was not judicially exercised,

Was based on wrong principles or misdirection, or

Was one no reasonable decision-maker could have made.

Section 193(2) discretion:

The commissioner has broad discretion in determining remedies under s193(2) of the LRA.

This involves a value judgment based on all relevant circumstances.

The Labour Court on review must ask whether the decision was one a reasonable decision-maker could not reach, following the Sidumo test.

Intolerability vs incompatibility:

Determining breakdown of the employment relationship must be objective, not based on the employer’s subjective or irrational views.

Intolerability requires weighty reasons and tangible evidence, not mere incompatibility.

Unfounded, serious, or scandalous allegations by an employee can justify a finding of intolerability even without a finding of misconduct.

Case example: In First National Bank v Language, an employee’s scandalous accusations made reinstatement inappropriate.

Findings in the present case:

The commissioner found the dismissal was substantively unfair, but the respondent showed negligence by failing to ensure proper oversight before going on leave.

When held accountable, he blamed a junior employee.

At the meeting, he said he did not trust senior colleagues, including the GM and legal advisor, and refused to cooperate with the investigation.

At arbitration, he accused management of destroying evidence, bias, and setting him up to fail.

These factors supported the commissioner’s view that reinstatement was not appropriate due to intolerability in the employment relationship.

Summary

The commissioner found that the respondent, a senior manager, refused to take responsibility for the failed smartcard rollout.

He blamed others, claimed he did not trust senior colleagues, including a close friend, the General Manager.

He refused to assist in resolving the issues and ignored invitations to help.

The respondent made serious, unfounded allegations against senior management during both the investigation and arbitration.

The commissioner found that he lacked insight into his own behaviour, and his claims were unsupported by credible evidence.

No evidence suggested a motive to sabotage him, undermining his conspiracy claims.

Despite his seniority, the respondent refused to cooperate or accept the responsibilities of his role.

The commissioner reasonably concluded that he would likely be uncooperative in future investigations and could potentially undermine them.

On the facts, there were “weighty reasons” with tangible evidence proving that reinstatement would be intolerable, meeting the high threshold established in the Booi case.

The commissioner’s decision not to reinstate was reasonable and justified given the respondent’s conduct and the employer’s operational concerns.

Legal principles on reinstatement (para 45)

Reinstatement is the primary remedy under s 193(1), but not automatic.

Section 193(2) can exclude reinstatement.

Courts must apply both subsections properly; failure to do so leads to incorrect reinstatement orders.

Fairness and onus (para 46)

Billiton emphasises fairness between parties is the key consideration.

Fairness must be assessed objectively, recognising security of employment as an LRA core value.

Woolworths confirms the employer must present compelling evidence showing reinstatement is not reasonably practicable.

Alignment on the test (para 47)

Despite differences in Billiton and Woolworths, both require factual enquiry into whether s 193(2)’s exceptions apply.

Because the employer seeks the exception, it must show reinstatement is not feasible / not reasonably possible / potentially futile.

Post-Woolworths case law supports this view.

Employer’s evidentiary failure — but relevant facts still existed (para 48)

Employer conceded it did not lead specific evidence on impracticability.

But undisputed evidence showed:

Loss of three major contracts (Autopax, Brakpan, Putco).

Serious operational decline.

Mediterranean Textile Mills principle:

Courts must still consider all relevant evidence—even if parties did not lead detailed argument—when deciding whether reinstatement is viable.

Court a quo’s error (para 49)

Court a quo failed to consider undisputed evidence of:

Successive loss of contracts.

Resulting operational strain.

Court accepted there was a general economic rationale for retrenchments but still ordered reinstatement.

It ignored:

Risk of genuine redundancies upon reinstatement.

Likely need for further retrenchments due to financial distress.

Result: reinstatement order was futile and inconsistent with the evidence.

Outcome on practicability (para 50)

Employer is correct: reinstatement + 18 months’ back pay would worsen its financial crisis.

Reinstatement not reasonably practicable.

Fairness requires balancing both parties’ interests based on proven facts.

Application of law to facts

Issues to be decided

The pre-arb minute at pages 8-9 lists the issues that involve both substance and procedure.

Annex “C”

Existence of the dismissal

Every employee has the constitutional and statutory right not to be [unlawfully] unfairly dismissed;

“Dismissal” means respondent terminated employment with or without notice.

Applicant has established that she was an employee.

Applicant must also “establish the existence of the dismissal”.

There is no doubt that applicant was not paid her salary after 8 July 2024 and was required to vacate her office space and return anything that did not belong to her.

However, Bernice Leonard, the person who actually purported to terminate her services, admitted during cross-examination that she did not have the authority nor power to terminate the applicant’s employment.

Bundle “A” pp 106-112

Annex “D”

Respondent’s witness Mr van der Merwe conceded during cross-examination that he was not applicant’s line manager nor did he take the decision to dismiss applicant because apart from not having any power to do so he was not consulted either.

No other evidence was adduced by respondent to inform the CCMA who actually decided to ignore LabourNet’s recommendation and summarily dismiss the applicant.

In other words respondent refused or failed to discharge the onus of proving that applicant’s employment was lawfully and fairly terminated given also that her original appointment was made by a director of respondent.

Bundle “B1” 1-12 (at page 12)

Applicant has consistently claimed that the termination of her employment was void, unlawful and unfair and persists with that claim.

Valid and fair reason to terminate

Further or in the alternative although the LRA does not use the word ‘valid’ it is clear that unless there is a valid reason it can never be fair.

See article by Halton Cheadle.

Excerpt from post on GilesFiles “Valid reason explained: Halton Cheadle on fairness’

“ Twenty six years ago, in May 1989, Halton delivered a paper entitled “The case for contracting out” and provided a summary of his talk.  In there he advocated the adoption of a new unfair labour practice definition and stated that it ought to include:

“No dismissal without a valid and fair reason.  ‘Valid’ means that the reason is true and proved.  In other words, the employer has to prove the truth of the reason.

‘Fair’ means that the reason is sufficient to justify dismissal.  In other words, the employee’s misconduct (theft, fraud etc) or accumulated misconduct (after a sufficient number of warnings) makes the continuation of the employment relationship no longer possible.  These are the words used by the ILO in its convention and recommendations on dismissal and in broad terms the tenor of past industrial court judgments”.

Strado Remanufacturing (Pty) Ltd v Diphoko NO (JA 103/23) [2025] ZALAC 19 [2025] 6 BLLR 576;  (2025) ILJ 2103 (LAC) (20 March 2025) per Roland Sutherland AJA (Savage AJP and Davis AJA concurring)

LAC allowed employer’s appeal in part regarding employee disobeying lawful instruction.

The issue of an appropriate sanction for SAM’s misconduct was not addressed in the initial proceedings. Given his 10 years of service and the absence of a formal disciplinary record—aside from Wall’s vague claims of verbal warnings—determining a fair ‘penalty’ requires careful consideration.

By the time this appeal was heard, 5 years had passed since the incident. Sending the matter back for a fresh hearing would only cause further unnecessary delay. It is therefore preferable for this Court to finalize the dispute.

While insubordination can be a serious ‘offence’, it varies in severity. In this case, SAM’s long service is a mitigating factor, and dismissal appears disproportionate for what seems to be a first ‘offence’. A final written warning would have been a more appropriate ‘penalty’.

Accordingly, reinstatement is justified. However, reinstating SAM with 5 years of back pay would be unreasonable and unfair to the employer. To balance fairness and practicality, reinstatement will be without retrospective effect, ensuring an equitable resolution.

Result

It is submitted that applicant’s services were summarily and unfairly terminated despite absence of proof by respondent that there were any valid or fair reasons to do so.

Applicant persists with her claim as outlined above.

Signed and dated at Cape Town on 12 December 2025

.Plaintiff’s duly authorised representative

MICHALSONS GILES INC