Not dismissed: Pandemic context and proportional discipline take centre stage

The Labour Court in Cape Town reviewed an arbitration award that had upheld the dismissal of a public school principal, Mr Wesley Neumann, by the Western Cape Education Department. The arbitration award had found him guilty on several misconduct charges arising from disputes about school operations during the COVID‑19 period, including alleged failure to obey instructions, insolence, bringing the department into disrepute, incitement via social media and breach of a government social media policy. The Labour Court set aside the award.

The Court held that only one instance of misconduct was established: the principal’s intemperate language in a letter to the Head of Department, which amounted to insolence but not gross insubordination. All other findings of guilt were set aside.

Dismissal was found to be disproportionate. The Court substituted a final written warning, ordered reinstatement to the position of Principal with effect from 2 February 2026, and directed retrospective back‑pay from the dismissal date (20 May 2022), subject to deductions for any alternative earnings. Costs were not awarded.

The legal issues the Court decided

• Lawfulness, reasonableness and fairness of instructions
  • The instruction to the principal on 24 July 2020 had to be assessed against the extraordinary context of uncertainty and fear during the pandemic.
  • The Court found the arbitrator failed to weigh that context properly, especially regarding an unrealistic same‑day deadline and the absence of clear regulatory footing at that moment.
  • It also held that the principal substantially complied with core elements of the instruction.
• Insolence versus gross insubordination
  • The Court distinguished a single instance of disrespectful language (insolence) from gross insubordination. Because the principal had expressly indicated he would comply with instructions and did in fact secure teaching and communication steps, the conduct did not amount to a wilful refusal of authority.
• Incitement versus protected advocacy
  • The Court emphasised that “incitement” requires intent to induce misconduct.
  • The arbitrator did not identify the specific misconduct allegedly encouraged, nor did he engage with the constitutional protection of advocacy and public debate about school safety during the pandemic.
  • The finding could not stand.
• Uncommunicated policies
  • The department could not discipline for breach of a social media policy that had not been shown to have been communicated to the principal.
  • Evidence showed that even his immediate superior had not seen the policy.
• Consistency and selective discipline
  • Evidence showed other principals engaged in similar public advocacy but were not charged, some being managed informally.
  • The arbitrator’s dismissal of selective discipline was unreasonable.
• Sanction and reinstatement
  • For a single act of insolence in an extreme context, progressive discipline was the appropriate response.
  • The department’s earlier offer of demotion and the absence of suspension undercut any claim of an irretrievable breakdown in trust.
  • The Court ordered reinstatement with a final written warning and retrospective back‑pay, with a mechanism for the employer to apply for deductions for alternative earnings.

Key takeaways for employers

• Context matters to reasonableness. When issuing instructions under volatile conditions, consider practicality, timing, and the prevailing regulatory framework. An instruction that is formally lawful can still be unreasonable or unfair in context. Build the context into your record‑keeping.
• Distinguish insolence from insubordination. An intemperate tone in correspondence is not automatically a refusal to obey. Where there is compliance or an undertaking to comply, gross insubordination is unlikely to be sustained. Calibrate the charge and sanction accordingly.
• Prove reputational harm. If alleging disrepute, lead evidence of actual harm or a clear likelihood of harm, and avoid propensity reasoning. Identify who published, how it spread, and why it would lower the employer in the eyes of the public.
• Do not discipline on unpublished rules. If you rely on a policy, prove it was disseminated, explained and reinforced through training. Keep verifiable records of communication and attendance.
• Be consistent. Unequal treatment for similar conduct undermines disciplinary outcomes. Where others received coaching or a “fireside chat”, it is difficult to justify a dismissal for the same type of expression.
• Progressive discipline first. A single act of insolence by a long‑serving employee with clean discipline generally calls for corrective measures, not dismissal. Document why a warning or coaching would not suffice if you are considering a stronger sanction.
• Think carefully before asserting a broken trust relationship. Offers of continued employment (for example, demotion) and the absence of suspension often contradict claims of intolerability. Align your litigation stance with your prior conduct.
• Remedy can be substituted. On review, a court may replace dismissal with a lesser sanction and order reinstatement with back‑pay, including a process for deductions based on mitigation. Factor litigation risk into decisions.

Key takeaways for employees

• Your words have consequences, but context counts. Intemperate language can be misconduct even during stressful circumstances. Keep communication firm and respectful, and put your safety concerns and factual context on record.
• Compliance versus criticism. You can criticise a decision and still comply. If you intend to comply, say so explicitly and follow through. This distinction helped the employee here.
• Protected advocacy is not incitement. Expressing views in public debate, especially on health and safety, is generally protected. Incitement requires intent to induce misconduct. Be clear that your advocacy is lawful and in the public interest.
• Ask for the policy. If an employer invokes a policy you have never seen, request it in writing, ask when and how it was communicated, and seek training if needed.
• Document everything. Keep copies of instructions received, your responses, and steps you take to comply. This record was decisive for the Court’s view on substantial compliance.

Useful tips (practical checklists)

For employers

Before disciplining for non‑compliance, ask:

• Was the instruction lawful, reasonable and fair in the circumstances?
• Was the timeline realistic and clearly communicated?
• Did the employee substantially achieve the objective?
• Have we communicated the relevant policy and trained staff, with proof?
• Are we treating comparable cases consistently and fairly?
• Would progressive discipline achieve correction here?
• Does our prior conduct (for example, not suspending, offering demotion) contradict a claim of intolerability?

For employees

When challenging an instruction:

• Set out factual safety or feasibility concerns in writing, without inflammatory language.
• Propose workable alternatives and timelines.
• Confirm whether you will comply and by when, and then do so.
• Keep records of communications with governing bodies, parents and staff.
• If posting publicly, focus on facts and safety rationales, avoid personal attacks, and preserve screenshots of context.

Conclusion

This judgment reinforces that discipline must be lawful, reasonable, fair and consistent, and that sanctions must be proportionate to the proven misconduct. A single instance of intemperate language during an unprecedented crisis did not justify dismissal, especially where the employee substantially complied with the core instruction, comparable conduct by others attracted milder responses, and the employer’s own conduct undermined claims of intolerability. Employers should prioritise clear communication, even‑handed enforcement and progressive discipline. Employees should communicate firmly but respectfully, comply where possible, and keep strong records

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