Skip to main content

Article 33/2021

Labour Edge

On what basis did the labour court recently hold, in De Kock v CCMA and Others (2019) 30 SALLR 177 (LC), that insubordination destroys the relationship of trust, mutual confidence and respect, and generally makes the continued employment relationship intolerable?

In De Kock, the following approach to the aforesaid scenario was adopted:

  1. in Humphries and Jewell (Pty) Ltd v Federal Council of Retail and Allied Workers Union and Others (1991) 12 ILJ 1032 (LAC), at 1037F–H, the labour appeal court held as follows:

‘…In our view a disregard by an employee of his employer’s authority, especially in the presence of other employees, amounts to insubordination and it cannot be expected that an employer should tolerate such conduct. The relationship of trust, mutual confidence and respect which is the very essence of a master‑servant relationship cannot, under these circumstances, continue. In the absence of facts showing that this relationship was not detrimentally affected by the conduct of the employee it is unreasonable to compel either of the parties to continue with the relationship…’ (see also Commercial Catering and Allied Workers Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC));

  1. the misconduct in casu was exacerbated by the fact that it had been deliberate and repeated, in the face of several efforts by the employer to simply secure compliance (see A Mauchle (Pty) Ltd t/a Precision Tools v National Union of Metalworkers of SA and Others (1995) 16 ILJ 349 (LAC), at 359E–F);
  2. in Motor Industry Staff Association and Another v Silverton Spraypainters and Panelbeaters (Pty) Ltd and Others (2013) 34 ILJ 1440 (LAC), at paragraph [31], the labour appeal court summarised the position in such circumstances as thus:

‘It is trite that an employee is guilty of insubordination if the employee concerned wilfully refuses to comply with a lawful and reasonable instruction issued by the employer. It is also well settled that where the insubordination was gross, in that it was persistent, deliberate and public, a sanction of dismissal would normally be justified…’ (see also Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others (2012) 33 ILJ 2117 (LC), at paragraphs [116] and [121]);

  1. the kind of insubordination committed by the applicant, in this instance, for want of a better description, was such that it would per se be destructive of the employment relationship;
  2. the applicant, in short, had made her intentions clear – she was not going to comply with her direct manager’s instructions to work the proper working hours as prescribed by the third respondent and had consequently earned her dismissal. An appropriate comparison could be found in the following dictum in Silverton Spraypainters:

‘In the present instance, Mr Van Jaarsveld wilfully, persistently and publicly defied a lawful and reasonable instruction given to him by his employer, Mr Cronje, who was the sole director of the company. On one of the occasions when Mr Van Jaarsveld defied the instruction it was in the presence of Ms Spaans, one of the company employees. It is trite that mutual trust and respect constitute a fundamental pillar in every sustainable employer-employee relationship. In my view, Mr Van Jaarsveld’s unbecoming conduct completely ruined his employment relationship with the company, which rendered his dismissal justified. The misconduct was so serious that the sanction of dismissal would, in my view, have been justified’ (see also Blitz Printers v Commission for Conciliation, Mediation and Arbitration and Others [2015] JOL 33126 (LC), at paragraph [69]); and

in the labour court’s view, therefore, and based on the seriousness of the misconduct alone, the applicant had earned her dismissal. The conclusion the second respondent arrived at in this regard had therefore to be upheld, as it would simply not be an irregular finding and, in any event, would be a finding that resorted well within the bands of a reasonable outcome.

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?