South Ocean Electric Wire (Pty) Ltd v NUMSA obo Ntsoana & others [2026] ZALCJHB 393

Date of Judgment & Seat of Court: 19 October 2026, Labour Court, Johannesburg

Case No: JR2335/23

Name of Judge(s): Motshekga AJ

Summary of Factual Matrix:

The employee, an extrusion machine operator, had committed to a weekend overtime shift during which a trial run was being conducted on his machine. When his request for a pass-out to leave early for personal errands was refused, because pass-outs were reserved for emergencies, he changed out of his protective clothing, shouted at and pointed his finger at his team leader in the office and on the shop floor in front of other operators, rebuffed a second team leader and declared that he would leave with or without permission; the production manager eventually issued a pass-out to defuse the situation. He was charged with gross insubordination, as defined in the employer's disciplinary code, and dismissed.

The bargaining council commissioner held that insubordination required proof of the refusal of a lawful instruction, found the evidence of rudeness evenly balanced against the employee's denial, characterised the conduct at most as insolence, and ordered retrospective reinstatement. The employer applied under section 145 of the LRA to review the award. The issues were the evaluation of mutually destructive versions, the test for insubordination, and the appropriateness of dismissal under the code.

Summary of Findings:

[13] ‘The standard of review is well established: is the award one that a reasonable decision-maker could not reach?[2] The award is considered as a whole rather than finding by finding.[3] An identified error renders the award reviewable only where it is material, in that the result would have been different but for the error, and the decision is not otherwise capable of reasonable justification.[4]’

[16] ‘The Commissioner failed to undertake the exercise set out in Stellenbosch Winery. Having reduced the dispute to whether Ntsoana was rude and pointed his finger at Kubayi, he moved directly from the employee’s denial to the onus, without a finding on the credibility or reliability of any of the witnesses and without regard to the probabilities, thereby treating as evenly balanced evidence which he had not weighed. As Ms Moodley correctly pointed out, the omission is the more striking in that the Commissioner had himself raised the assessment of credibility with Kubayi during her evidence.’

[17] ‘The charge alleged that Ntsoana was rebellious, that he challenged and refused to accept authority, and that his behaviour was unruly and defiant. The issue for determination was therefore whether, on 4 June 2023, Ntsoana conducted himself in the manner alleged when his request for a pass-out was refused. Ntsoana’s version that Kubayi had agreed that morning to his leaving at 15h00 does not assist him in this regard, as the charge concerned his conduct once the pass-out was refused, and not his leaving early.’

[18] ‘The record reveals that the evidence of Kubayi, Manuel and Mission that Ntsoana shouted and pointed his finger remained unchallenged in cross-examination, NUMSA’s representative contending instead that their testimony related to insolence rather than the charge. […] The times given were stated as approximate, and the discrepancy is immaterial to the central issue before this Court. Ntsoana’s denial, and his reliance on closed-circuit television footage, were not put to Manuel or Mission, and were raised with Kubayi only through a passage of the disciplinary minutes, the authorship of which was disputed. The denial and the reliance on the footage were advanced for the first time in Ntsoana’s evidence, notwithstanding the Commissioner’s caution at the outset that a version not put to a witness would carry less weight.’

[19] ‘As regards reliability, each of the three witnesses was present and observed the exchange. Mission, who stood some three metres away, heard the shouting, saw the finger pointing and asked that the matter be taken to the office, as Ntsoana’s body language suggested to him that someone could be hurt. Mission testified that he had worked with Ntsoana for a long time, with no bad blood between them, signifying that he had no interest in his colleague’s dismissal. That evidence was, in any event, not challenged.’

[20] ‘The Commissioner’s finding that the evidence of South Ocean’s witnesses showed Ntsoana to have been “insolent rather than insubordinate” is, moreover, at odds with his finding that the allegation of rudeness had not been proven. The two findings are mutually exclusive.’

[21] ‘Properly evaluated, the evidence establishes that Ntsoana conducted himself as South Ocean’s witnesses described, and the Commissioner’s contrary finding is incapable of justification on the evidence. This ground accordingly succeeds.’

[24] ‘South Ocean’s disciplinary code is consistent with the principle in Palluci that insubordination may consist in a deliberate and serious challenge to the employer’s authority, without an instruction having been given or disobeyed. The charge reproduces, word for word, the code’s description of gross insubordination, which makes no mention of an instruction. The disciplinary code deals separately with a refusal to obey “a reasonable and lawful/legal Job instruction given by any person in authority”, and with a failure to obey or carry out an instruction, and the three requirements which the Commissioner set out in the award are the elements of those offences.’

[25] ‘Notwithstanding his appreciation that the charge mirrored the code’s description of gross insubordination, the Commissioner instead assessed the evidence against the elements of a refusal to obey an instruction, a misconduct with which Ntsoana was not charged, thereby committing an error of law.’

[26] ‘As to the finding that none of South Ocean’s witnesses referred to an instruction, the award’s summary of the evidence records otherwise, as does the record.’

[27] ‘Applied against the correct test, namely whether Ntsoana’s conduct posed a deliberate and serious challenge to, or defiance of, South Ocean’s authority, the evidence establishes more than a lack of courtesy. Ntsoana declared that he would leave with or without permission. When told that the production manager had refused his request, his response was that he did not report to Delport, who could not tell him anything. Added to this, when the refusal was made unequivocal, he made it known that he would not return to work or put his protective clothing back on, and he persisted in shouting at Kubayi on the shop floor in the presence of the operators until Mission intervened. That conduct, which extended beyond contempt to defiance and disobedience, is a deliberate and serious challenge to the authority of both his team leader and the production manager, and it falls within the charge as described in the disciplinary code.’

[28] ‘Ntsoana’s conduct left management with little option but to release him in order to restore order. The pass-out was, in effect, issued under protest, and cannot therefore be construed as condoning the conduct for which Ntsoana was charged.’

[29] ‘Resultantly, had the Commissioner applied the correct test for insubordination to the conspectus of the evidence before him, the only finding a reasonable commissioner could have reached was that Ntsoana was guilty of gross insubordination. This ground accordingly succeeds.’

[30] ‘Considered cumulatively, the Commissioner’s errors materially affected the outcome of the award. In failing to evaluate the mutually destructive versions, he treated the unchallenged evidence of South Ocean’s three witnesses as evenly balanced against a bare denial. By applying the elements of a refusal to obey an instruction, he then excluded from consideration the conduct which the charge of gross insubordination described. Mr Nkabinde submitted that even if the Commissioner’s reasons were flawed, the award remained reasonable on the material before him. This submission is unsustainable. The outcome of the award is founded on the Commissioner’s finding that Ntsoana did not commit the misconduct with which he was charged, a finding which, for the reasons set out above, is not supported by the evidence before him. On that footing, the award stands to be reviewed and set aside.’

[31] ‘The upshot of the finding that Ntsoana was not guilty of gross insubordination is that the Commissioner’s conclusion on sanction proceeded from that erroneous premise. Accordingly, the Court determines the appropriateness of the sanction of dismissal for gross insubordination hereunder, and the Commissioner’s alternative findings on insolence do not arise.’

[35] ‘Read within its purposive context, “N/A” denotes that the informal step of coaching and recording is not applicable where the offence is serious.’

[36] ‘Gross insubordination is marked “N/A” in the “0 base” column and “D” in the column headed “1st”. This is congruent with the manner in which the code treats incitement to strike, assault, sexual harassment, theft and the driving of a company vehicle without a valid licence, all serious in nature and marked in the same way. Mr Nkabinde’s reading distorts the logic of the schedule. To accept it would mean that an employee who incites a strike, or who assaults a colleague, cannot be dismissed on a first offence, a result at odds with the code itself, which records that “some transgressions may warrant first time dismissal” and which contemplates counselling for misconduct “of a minor or less serious nature”. Consequently, the most sensible interpretation, and one leading to a businesslike result, is that dismissal on the first offence is the recommended sanction for gross insubordination.’

[37] ‘The Court is in common with that view, in that the right to fair labour practices is vouchsafed to both the employer and the employee.[10] The code accordingly requires that each case be judged on its merits, and permits a sanction more severe than that recommended where aggravating factors exist, or less severe where there are mitigating circumstances.’

[39] ‘The Court finds that the circumstances in the current matter do not permit a sanction short of dismissal. Ntsoana’s conduct was not a momentary outburst. It persisted, on Kubayi’s evidence, from shortly after 15h00 until between 15h30 and 16h00, despite the efforts of two team leaders and the production manager to calm him and took place in the presence of the operators whom she supervised, while a trial run was being conducted on Ntsoana’s machine. Kubayi, one of only two women on the floor that day, testified that she was afraid and that she did not wish to work with Ntsoana again, evidence which the Commissioner attributed to ego without any foundation in the record. That testimony establishes that the trust relationship has broken down.’

[40] ‘In addition, the record discloses no mitigating circumstances sufficient to warrant a departure from the recommended sanction. Even if Ntsoana believed that Kubayi had agreed to his leaving at 15h00, his frustration on being instructed otherwise by his superiors does not excuse the nature and duration of his conduct, directed as it was at two levels of management. All circumstances considered, the Court is satisfied that dismissal was an appropriate sanction.’

[41] ‘Having regard to the requirements of law and fairness, the Court finds no justification for a costs order.’

Relief: The award (MEGA60186) was reviewed and set aside and substituted with a finding that the employee's dismissal was substantively fair. No order as to costs was made.

Judgment on SAFLII