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Article 24/2021

Labour Edge

Under which circumstances will insubordination justify dismissal?

The labour appeal court recently, in Maripane v Glencore Operations SA (Pty) Ltd (Lion Ferrochrome) (2019) 30 SALLR 163 (LAC), adopted the following approach:

  1. there was an onus on the respondent to show that the dismissal, which was common cause, had been fair. This would have included showing, on a balance of probabilities, that the appellant had been guilty of the misconduct with which he had been charged and for which he had been dismissed. To justify dismissal, the insubordination had to be gross, meaning that the insubordination ‘must be serious, persistent and deliberate’; and
  2. whether the refusal to obey an instruction amounts to insubordination also depends on various factors, including the employee’s conduct before the alleged insubordination, the wilfulness of the employee’s refusal to obey, and the reasonableness of the instruction (Workplace Law (above) at 175 and the cases cited therein fn. 125). The reasonableness of any instruction also depends on its lawfulness and enforceability (see Mlaba v Masonite (Africa) Ltd and Others [1998] 3 BLLR 291 (LC) at 296I-297G and SACCAWU and Others v Mahawane Country Club [2002] 1 BLLR 20 (LAC) at paragraph [7]). It seems axiomatic, that any instruction to do what is unlawful, or in breach of a contractual term is not reasonable.

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?