Labour Appeal Court Upholds Dismissal of Correctional Officer for Insubordination
In the matter of Department of Correctional Services v Kutu and Others (JA27/2024) [2025] ZALAC 17 (14 March 2025), the Labour Appeal Court (LAC) heard an appeal of a Labour Court ruling.
The employee was employed as a Correctional Officer at the Atteridgeville Correctional Centre. On 19 July 2018, he was instructed by his unit manager to escort an inmate suffering from a kidney and bladder condition to Kalafong Hospital.
The employee refused, claiming it was his birthday and that he intended to leave work at noon.
When confronted about the date, he later stated he had confused his birthday with that of his wife. Despite repeated requests from his unit manager, the employee refused to carry out the instruction, stating he was going for lunch.
A disciplinary hearing found him guilty of misconduct and he was dismissed on 29 August 2019. The arbitration before the General Public Service Sectoral Bargaining Council exonerated the employee on two charges but upheld the guilty finding on insubordination and deemed the dismissal appropriate.
The employee challenged the arbitration award in the Labour Court, which upheld the guilty finding but found the sanction of dismissal too harsh. It substituted the dismissal with reinstatement and a final written warning, citing his long service and lack of a problematic disciplinary record. The Court also dismissed claims by the employee that he was targeted in a conspiracy due to his change in union membership from POPCRU to PSA.
On appeal, the LAC scrutinised the Labour Court’s approach, finding that it had blurred the line between a review and an appeal. The LAC held that the Arbitrator’s finding was reasonable and that the Labour Court erred in intervening. Evidence presented at the disciplinary hearing showed that the employee had previously received three disciplinary warnings for similar conduct, contradicting the Labour Court’s characterisation of him as a “non-problematic” employee.
The LAC also rejected the cross-appeal lodged by the employee, which sought to overturn the guilty finding altogether. The Court reiterated that even if a conspiracy existed, the employee was aware of it and could have complied with the lawful instruction, challenging it later if necessary.
Ultimately, the Labour Appeal Court upheld the appeal by the Department of Correctional Services, set aside the Labour Court’s order, and confirmed the dismissal as reasonable. No order as to costs was made.
by Johnny Goldberg