Keys, machines, and consequences: When misconduct drives dismissal

The Labour Court of South Africa recently reviewed a dispute between Tharisa Minerals and an employee, who was represented by the National Union of Public Service and Allied Workers. The case centred on whether the employee’s dismissal was substantively fair. The commissioner had previously found the dismissal to be unfair and ordered reinstatement with eleven months’ back pay. However, the Labour Court overturned that decision and found the dismissal to be justified.

This case highlights the importance of clear communication, adherence to workplace policies and the consequences of unauthorised conduct in high-risk environments where safety protocols are designed to protect both employees and the public.

Legal implications

The judgment provides clarity on several key legal principles relevant to workplace discipline as well as the intersection between misconduct and occupational health and safety obligations.

Lawful instruction and insubordination

• The case hinged on whether the employee’s failure to follow a lawful instruction constituted insubordination. South African labour law recognises that insubordination is not merely a refusal to obey an instruction. It must be a wilful and serious refusal that undermines the employer’s authority.
• The Labour Court referred to several precedents:
  • In Exxaro Coal Mpumalanga v CCMA, the court held that once an instruction is found to be lawful, the employee is expected to comply. The nature of the instruction, even if outside the employee’s usual duties, does not justify refusal.
  • In Independent Risk Distributors SA v CCMA, the court clarified that insubordination must be persistent and deliberate to warrant dismissal.
  • In Palluci Home Depot v Herskowitz, the court stated that insubordination involves a serious challenge to the employer’s authority, not just a failure to perform a task.
• In this case, the instruction was lawful and reasonable. The employee’s failure to communicate his inability to carry it out was viewed as a serious breach of duty. The court found that the commissioner’s conclusion that the employee was only guilty of failing to communicate was unreasonable, given the broader context.

Unauthorised use of company property

• The employee used a company vehicle without permission. He argued that his licence entitled him to operate any machine. However, the court reaffirmed that possession of a licence does not equate to authorisation. The key controller did not issue the key and the employee’s assumption was not supported by policy.
• The key control system was designed as part of the mine risk management measures. Bypassing this system undermines controls meant to prevent unauthorised or unsafe use of heavy vehicles.
• The employer’s disciplinary code clearly categorised unauthorised possession of company property as a dismissible offence. The court found that the commissioner failed to properly weigh this evidence and that the employee’s conduct warranted dismissal.

Breach of safety protocols

• The employee used the vehicle without obtaining the required artisan signature on the pre-use checklist. The policy stated that both the driver and the artisan must sign before the vehicle is used. The commissioner accepted the employee’s claim that it was common practice to proceed without the artisan’s signature.
• The court rejected this reasoning, noting that:
  • There was no evidence of such a practice.
  • The policy was clear and mandatory.
  • Safety procedures must be strictly followed, especially in mining operations.
• Shortcuts in safety protocols cannot be excused by convenience or informal practices. The court held that the commissioner’s finding was not based on credible evidence and undermined the seriousness of the breach.

Dishonesty and procedural fairness

• The employee was paraded at the end of his shift but was allowed to leave without proper verification. The court found that the TNA officer’s explanation was weak but did not overturn the commissioner’s finding on dishonesty. This shows that while dishonesty is a serious allegation, it must be proven with clear evidence.

Key takeaways for employers

• Ensure that workplace policies are clear and consistently enforced.
• Document instructions and follow up on non-compliance.
• Treat unauthorised use of company property as a serious offence.
• Maintain strict adherence to safety protocols.
• Communicate expectations clearly and act promptly when misconduct occurs.
• Safety is non-negotiable: Reinforce that deviation from safety rules such as checklists and key controls constitutes serious misconduct.
• Integrate safety into discipline: Treat unauthorised use of machinery not only as a misconduct but as a breach of health and safety obligations.

Key takeaways for employees

• Understand that possession of a licence does not grant automatic permission to use equipment.
• Always communicate with supervisors when unable to perform assigned tasks.
• Follow safety procedures without exception.
• Avoid assumptions about workplace practices and rely on formal policies.
• Recognise that misconduct can lead to dismissal even if procedural fairness is observed.
• Recognise that rules such as key controls exist to prevent accidents, injuries and fatalities.

Final thoughts

This case serves as a reminder that in high-risk industries such as mining, discipline must be enforced with precision and fairness. Employees must respect authority and follow procedures, while employers must ensure that policies are clear and consistently applied. The court’s decision reinforces the principle that misconduct, especially when compounded by poor communication and disregard for safety, can justify dismissal.

More importantly, the case underscores that discipline in such contexts must always be applied with a safety-first mindset, recognising that every procedural safeguard is a barrier between safe operations and potential disaster.

For advice or more information, please contact Riona Kalua, head of our Labour and Employment team.