Fiona Kock v Commission for Conciliation, Mediation and Arbitration and Others

The applicant was employed by the third respondent (Absa Bank Ltd) since 6 December 2006 as a quality assurance specialist. In February 2015, her manager Edward Africa instructed all team members, including the applicant, to work official hours of 08h00 to 16h30. The applicant had previously worked 07h30 to 16h00 as a special arrangement, but this was withdrawn in 2014 due to late coming. Despite repeated written instructions from Africa in February, May, and August 2015, the applicant refused to comply and continued working 07h30 to 16h00. The applicant had received a final written warning on 9 July 2015 for insubordination related to refusing to participate in a PAP process, which she never challenged. She was charged with insubordination for refusing to obey lawful instructions regarding working hours, found guilty at a disciplinary hearing on 22 September 2015, and dismissed on 25 September 2015. The applicant referred an unfair dismissal dispute to the CCMA. The arbitrator (second respondent) found the dismissal both procedurally and substantively fair and dismissed her claim. The applicant then brought this review application.

• What is the proper test for review of CCMA arbitration awards under section 145 of the LRA?
• Can an employee challenge the validity of a final written warning in unfair dismissal proceedings when the warning was never challenged as an unfair labour practice?
• What constitutes insubordination as misconduct justifying dismissal?
• What is the effect of a valid final written warning for related misconduct on the fairness of dismissal for subsequent similar misconduct?
• What factors must be considered in determining whether dismissal is a fair sanction?

The review application was dismissed. There was no order as to costs.

A final written warning that has not been challenged as an unfair labour practice at the time it was issued cannot be challenged in subsequent unfair dismissal proceedings. The distinction between dismissal disputes and unfair labour practice disputes under the LRA means each must be pursued through separate referrals to the CCMA. An arbitrator dealing with an unfair dismissal dispute may only enquire whether a final written warning was issued, the employee was aware of it, whether it concerns related misconduct, and whether it is still binding - but not into its validity or fairness. Deliberate and persistent insubordination, particularly in the face of repeated clear instructions, constitutes serious misconduct that can justify dismissal. Where an employee commits further insubordination after receiving a valid final written warning for related insubordination, dismissal is ordinarily justified as the employee has spurned their last chance. The purpose of a final written warning is to place an employee on final terms, and if not challenged when issued, the employee cannot later undermine its effect.

The Court observed that while it is not always necessary to lead evidence about the breakdown of the trust relationship where gross misconduct is established, certain cases of misconduct speak for themselves and justify an inference that the trust relationship has been destroyed. The Court also noted that not every factor relevant to sanction need be specifically addressed by an arbitrator if the overall outcome remains reasonable on the material before the arbitrator. The Court commented on policy considerations underlying the principle that final written warnings must be challenged when issued: the purpose is to place employees on final terms, and employers must be entitled to rely on employees adjusting their behaviour accordingly rather than having the warning's validity challenged only after dismissal for repeat misconduct. The Court acknowledged that while a final written warning for related misconduct ordinarily should lead to dismissal upon reoffending, there may be unique circumstances where dismissal does not follow, but this would need to be shown by the employee based on the particular facts.

This judgment is significant for establishing important principles regarding: (1) the review of CCMA arbitration awards and the limited circumstances in which courts will interfere; (2) the requirement that final written warnings must be specifically challenged as unfair labour practices when issued, and cannot be challenged later in unfair dismissal proceedings; (3) the serious nature of insubordination as misconduct, particularly when deliberate, repeated and in defiance of clear instructions; (4) the effect of valid final written warnings for related misconduct in justifying dismissal for subsequent similar conduct; and (5) the application of progressive discipline principles. The judgment reinforces the distinct dispute resolution processes under the LRA for dismissals versus unfair labour practices, and the finality and binding effect of unchallenged disciplinary sanctions.