Association of Mineworkers and Construction Workers Union (AMCU) obo Kgotlang v Commission for Conciliation, Mediation and Arbitration and Others [2026] ZALAC 12

Seat of the Court: The Labour Appeal Court of South Africa, Johannesburg

Presiding Judges: Van Niekerk JA, Chetty AJA and Kganyago AJA (Judgment delivered by Chetty AJA)

Summary of the Basis of the Claim

The Appellant, AMCU on behalf of Mr Otshepeng Kgotlang, appealed against a decision of the Labour Court (Manchu AJ) which dismissed a review application challenging an arbitration award that had confirmed the substantive fairness of Mr Kgotlang's dismissal. Mr Kgotlang, a part-time shop steward and branch secretary of AMCU at Siyanda Bakgatla Platinum Mine, was dismissed following a disciplinary hearing in which he was found guilty of gross insubordination (for refusing to obey lawful instructions to report for underground duties) and clocking fraud (for clocking in without reporting for duty). He contended that a "gentleman's agreement" exempted shop stewards from reporting underground, and that procedural requirements for transfer to underground duties had not been met.

Analysis and Findings of the Court with Direct Quotations

On the Standard of Review and the Sidumo Test:

"[27] ... The question central to that enquiry is whether the arbitrator's decision is one that a reasonable decision-maker could reach. Sutherland JA in Makuleni v Standard Bank of SA (Pty) Ltd and Others warned of a review court yielding 'to the seductive power of a lucid argument that the result could be different'. The court went on to state that:

'...At the heart of the exercise is a fair reading of the award, in the context of the body of evidence adduced and an even-handed assessment of whether such conclusions are untenable. Only if the conclusion is untenable is a review and setting aside warranted.'" (para 27)

On the Implausibility of the Applicant's Version:

"[29] ... If he spent his time as a shop steward attending to union duties rather than being posted underground, it would be entirely reasonable to expect him to be familiar with company policies and procedures. The ineluctable reason for his denial is that the 2009 recognition agreement and the 2020 memorandum explicitly recorded what was required of a part-time shop steward. They jettisoned any reliance on the so-called gentleman's agreement and was aimed at correcting the exact conduct attributed to the appellant." (para 29)

On Credibility Findings and Appellate Restraint:

"[30] ... Credibility findings should not be judged in isolation, but must be founded (as it was by the arbitrator) in light of proven facts and the probabilities of the matter. I can find no misdirection with the arbitrator's findings and approach in this respect. Whilst a court of appeal is generally reluctant to disturb findings which depend on credibility, it is trite that it will do so where such findings are plainly wrong." (para 30)

On the Nature of Insubordination and the Sanction of Dismissal:

"[33] In Enviroserve Waste Management (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others the court considered the conceptual difference between insolence and insubordination and said the following:

'[15] It is accepted that the offence of mere insolence is not in itself sufficient to result in a dismissal... However, for insolence to justify a dismissal, it must by all accounts be wilful and serious, with the result that the employment relationship irretrievably breaks down...

[16] Insolence as directed towards persons in managerial or supervisory positions, especially in the presence of other junior employees, invariably results in the manager's or supervisor's authority being undermined...

[17] In Palluci Home Depot (Pty) Ltd,, the Labour Appeal Court, also held that the sanction of dismissal should be reserved for instances of gross insolence and gross insubordination...'" (para 33)

On the Reasonableness of the Arbitrator's Outcome:

"[36] The Labour Court was tasked in determining, on review, whether the arbitrator's decision which found the employee guilty of two counts of misconduct and determined that he be dismissed, was a decision to which a reasonable decision-maker could have come on the available evidence. The Labour Court cannot be faulted for upholding the determination of the arbitrator, which ultimately is a value judgment, but is one which was not unreasonable and not one that no other arbitrator could have come to." (para 36)

Order of the Court

"Order

1. The appeal is dismissed;

2. There is no order as to costs." (para 37)