Kock v Commission for Conciliation, Mediation and Arbitration and Others

The applicant, Fiona Kock, was employed by ABSA Bank Ltd as a quality assurance specialist from December 2006. The employer’s official working hours were 08h00 to 16h30, although alternative staggered hours had previously been allowed as an indulgence. Due to the applicant’s persistent late-coming, this indulgence was withdrawn in 2014 and she was instructed to work the official hours. From January 2015 she unilaterally reverted to earlier hours without permission. Despite repeated written and verbal instructions from her manager, Edward Africa, she refused to comply. She had previously received a final written warning in July 2015 for insubordination, which she never challenged. Following continued refusal to comply with working hours instructions, she was charged with insubordination, found guilty at a disciplinary hearing, and dismissed on 25 September 2015. She referred an unfair dismissal dispute to the CCMA, where the arbitrator upheld the dismissal as procedurally and substantively fair. She then applied to the Labour Court to review and set aside the arbitration award under section 145 of the Labour Relations Act.

The review application was dismissed and the CCMA arbitration award upholding the applicant’s dismissal was confirmed.

The case affirms the strict separation in South African labour law between unfair dismissal disputes and unfair labour practice disputes. It confirms that a final written warning, if not timeously challenged as an unfair labour practice, stands and cannot later be attacked indirectly in unfair dismissal proceedings. The judgment also reinforces the Sidumo/Herholdt reasonableness test for review under section 145 of the LRA.