Pioneer Foods (Pty) Ltd t/a Aeroton Bakery v Commission for Conciliation, Mediation and Arbitration and Others

The applicant employed the third respondent as a Production Supervisor for 16 years at its Aeroton Bakery. On 12 October 2020, a quality problem was discovered with brown bread flour. A management meeting on 14 October 2020 resolved that white bread flour should be manually blended with brown bread flour to restore quality. The Acting Production Manager, Mr. Madimatswana, was instructed to convey this instruction to all three Production Supervisors working on different shifts. The third respondent started his shift at 6h00 on 15 October 2020, but only received the instruction from Mr. Madimatswana at 10h00, by which time he had already moved to baking white bread. The third respondent blended the flours automatically, not manually as allegedly instructed. The applicant dismissed the third respondent on 29 December 2020 for gross negligence, failure to follow reasonable instruction, and gross insubordination, alleging this resulted in losses of R39,853.00 due to poor production of 11,070 loaves. The third respondent referred an unfair dismissal dispute to the CCMA.

• Whether the CCMA Commissioner's finding that the dismissal was substantively unfair was reviewable
• Whether the employer discharged its onus under section 192(2) of the Labour Relations Act to prove the fairness of the dismissal
• Whether the instruction to blend flour manually was properly communicated to the third respondent
• Whether the third respondent's conduct constituted insubordination or failure to follow a reasonable instruction
• What is the appropriate standard of review for CCMA arbitration awards

1. The application for review of the arbitration award under case number GAJB1565-21 is dismissed. 2. There is no order as to costs.

An arbitration award will not be set aside on review merely because the reviewing court would have reached a different conclusion. The test is whether the decision was one that a reasonable decision-maker could not reach. An employer bears the onus under section 192(2) of the LRA to prove the fairness of dismissal on a balance of probabilities by showing through credible evidence that its version is the more probable and acceptable version. Where dismissal is based on failure to follow an instruction or insubordination, the employer must prove that the instruction was lawful, reasonable, and properly communicated to the employee. Where the employer's own evidence reveals that a critical part of an instruction was not communicated to the employee, and management failed to take corrective action when aware of non-compliance, the employer cannot establish that dismissal for failure to follow that instruction was substantively fair.

The Court noted that the applicant's crafting of the charges created an impression that two separate instructions were issued over a two-day period, when the evidence suggested only one instruction on 15 October 2020. The Court observed that it would not be in the interest of law and fairness to make a cost order in circumstances where the employment relationship is facing restoration through a reinstatement order. The Court referenced the expanded definition of insubordination from Palluci Home Depot v Herskowitz, noting that insubordination can include conduct posing a deliberate and serious challenge to employer's authority beyond merely refusing to obey an instruction, though this was not determinative given the failure to prove the instruction itself. The Court noted that the applicant's reliance on an alleged guilty plea at the disciplinary hearing appeared to be a newly introduced issue at review stage that had not been tested in evidence before the arbitrator.

This case reinforces the limited scope of review of CCMA arbitration awards under the reasonableness standard established in Sidumo. It confirms that review courts must not substitute their own views for those of arbitrators simply because they might have decided differently. The case emphasizes the importance of employers properly discharging the onus under section 192(2) of the LRA to prove fairness of dismissal on a balance of probabilities. It highlights that in cases of alleged insubordination or failure to follow instructions, the employer must prove not only that an instruction was given but that it was properly and fully communicated to the employee. The case illustrates that communication failures by management can undermine the basis for disciplinary action, and that arbitrators are entitled to consider inconsistencies in the employer's evidence and the conduct of management in assessing whether dismissal was substantively fair.