Can an employee be fairly dismissed for making a critical remark about her employer’s uniform? And can WhatsApp posts or an emotional reaction at work justify dismissal for allegedly bringing an employer into disrepute?
These questions were considered by the Labour Court in Falcon Cleaning (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PR303/22) [2026] ZALCPE 19 (12 June 2026).
The case concerned the dismissal of a cleaner following allegations of gross insolence and conduct that allegedly brought her employer into disrepute.
The CCMA Commissioner found the dismissal substantively unfair and ordered the employee’s retrospective reinstatement. The employer subsequently approached the Labour Court seeking to review and set aside the arbitration award.
The Court dismissed the review application, finding that the Commissioner’s decision fell within the range of decisions that a reasonable decision-maker could reach.
The judgment provides useful guidance on gross insolence, employee misconduct, social-media evidence and the review of CCMA arbitration awards.
The Facts: Employee Dismissed for Alleged Insolence
Falcon Cleaning (Pty) Ltd employed S Tobi as a cleaner until her dismissal in August 2021.
The disciplinary charges against the employee centred on two principal allegations:
- Gross insolence; and
- Conduct bringing the employer into disrepute.
The allegation of gross insolence arose after the employee was questioned about wearing jeans rather than the company’s uniform trousers.
The employee had previously been issued with uniform pants. According to her evidence, the pants had worn out, and she had obtained permission to wear jeans.
When questioned about the issue, she allegedly remarked that the company had bought “cheap pants” and explained that she wanted to wait until the end of the month so that she could purchase more durable trousers herself.
The employer regarded the remark as insolent and proceeded with disciplinary action.
A further allegation concerned WhatsApp status posts and an emotional incident that occurred after the employee was served with disciplinary charges. It was alleged that her conduct damaged the employer’s reputation, including through an incident involving the employer’s client.
The employee disputed the allegations.
The CCMA Finds the Dismissal Substantively Unfair
The dispute was referred to the Commission for Conciliation, Mediation and Arbitration (CCMA).
After considering the evidence, the Commissioner found that the dismissal was substantively unfair.
The Commissioner concluded that the employee’s conduct did not justify dismissal and ordered retrospective reinstatement.
Falcon Cleaning then brought a review application in terms of section 145 of the Labour Relations Act 66 of 1995 (LRA).
The employer argued that the Commissioner had committed reviewable irregularities, including by failing to properly determine the real dispute and by placing undue emphasis on the employee’s permission to wear jeans.
The employer also argued that the Commissioner had failed to properly assess the alleged reputational harm caused by the WhatsApp posts and the employee’s conduct.
What Is Gross Insolence?
Insolence in the workplace generally concerns disrespectful, impudent or offensive conduct towards an employer or someone in a position of authority.
However, not every instance of disrespectful or inappropriate conduct amounts to gross insolence warranting dismissal.
The seriousness of the conduct must be assessed in context.
The Labour Court’s judgment in Falcon Cleaning illustrates why an employer should not assess an allegedly insolent statement in isolation.
The “Cheap Pants” Remark: Frustration or Gross Insolence?
The Labour Court considered the circumstances surrounding the employee’s comment that the uniform pants were “cheap”.
The evidence indicated that the employee had previously received uniform pants and that those pants had worn out. She had also been permitted to wear jeans.
Against that background, the Commissioner interpreted the employee’s statement as an expression of frustration about the quality of the uniform, rather than a deliberate act of serious disrespect towards her employer.
The Labour Court found this conclusion to be reasonable.
Even if the employee’s remark could be regarded as inappropriate, the Court held that it did not necessarily amount to gross insolence of a nature serious enough to justify dismissal.
WhatsApp Posts and Alleged Reputational Harm
The second major issue concerned WhatsApp status posts that the employer alleged contributed to bringing the company into disrepute.
The Court considered the content and context of the posts.
Importantly, the posts did not directly refer to Falcon Cleaning.
The Commissioner accepted an explanation that the posts were unrelated to the employer.
The Labour Court found that the Commissioner’s conclusion was one that a reasonable decision-maker could reach.
This highlights an important issue for employers dealing with social-media misconduct: an employee’s social-media activity does not automatically constitute misconduct simply because it occurs during a period of workplace conflict or disciplinary proceedings.
There must be a sufficient evidentiary basis connecting the conduct to the alleged workplace misconduct or reputational harm.
The Emotional Incident at the Workplace
The employer also relied on an emotional incident following the employee’s receipt of disciplinary charges.
It was alleged that the employee shouted at the employer’s client.
The Court considered the circumstances surrounding the incident and concluded that it did not establish reputational harm or misconduct sufficiently serious to justify the employee’s dismissal.
The case demonstrates that an employee’s emotional reaction should also be assessed in context, rather than viewed in isolation.
The surrounding circumstances, the nature of the conduct and the actual consequences of the incident may all be relevant when determining whether dismissal is justified.
The Labour Court’s Approach to Reviewing a CCMA Award
The employer’s application was brought under section 145 of the Labour Relations Act.
The Labour Court applied the established review test associated with Sidumo v Rustenburg Platinum Mines Ltd and Others.
The question is not simply whether the reviewing Court would have reached a different conclusion from the Commissioner.
Instead, the Court considers whether the Commissioner’s decision falls outside the range of decisions that a reasonable decision-maker could reach.
The Court also referred to Gold Fields Mining South Africa (Pty) Ltd v CCMA, which emphasises that a review should involve a holistic assessment of the arbitration proceedings and award rather than an overly technical, piecemeal search for errors.
Errors in Reasoning Do Not Necessarily Make an Award Reviewable
An important aspect of the judgment is the Court’s treatment of the alleged deficiencies in the Commissioner’s reasoning.
The Labour Court accepted that there were aspects of the Commissioner’s reasoning that could be criticised.
However, the question was whether those deficiencies had a distorting effect on the outcome.
The Court concluded that they did not.
The Commissioner’s ultimate finding that the dismissal was substantively unfair remained within the range of reasonable outcomes.
Accordingly, the arbitration award was not reviewable.
Key Lessons for Employers
The Falcon Cleaning judgment provides several practical lessons for employers dealing with allegations of insolence and workplace misconduct.
- Consider the Context
A statement should not automatically be characterised as gross insolence without considering why it was made, how it was made and the circumstances surrounding it.
- Distinguish Between Insolence and Gross Insolence
Not every inappropriate comment warrants dismissal.
Employers should consider whether the conduct is sufficiently serious to justify the most severe disciplinary sanction.
- Substantiate Reputational Harm
Where dismissal is based on conduct allegedly bringing the employer into disrepute, employers should identify the evidence connecting the employee’s conduct to the alleged reputational damage.
- Assess Social-Media Evidence Carefully
WhatsApp posts and other social-media activity should be considered in context.
The employer should establish whether the content actually refers to the business or is sufficiently connected to the employee’s employment.
- Consider Proportionality
Even where misconduct is established, the employer must consider whether dismissal is an appropriate sanction in the circumstances.
- Conduct a Holistic Assessment
If a CCMA award is later challenged, the employer must demonstrate more than disagreement with the Commissioner’s findings.
The review test is concerned with whether the decision falls within the range of reasonable outcomes.
Lessons for Employees
Employees should also exercise caution when commenting about employers, colleagues or workplace disputes.
Employees should:
- Avoid making unnecessarily offensive or insulting comments;
- Understand workplace disciplinary policies;
- Exercise caution when posting about workplace disputes on social media;
- Preserve evidence relating to disciplinary proceedings;
- Respond appropriately to disciplinary allegations; and
- Obtain legal advice where disciplinary action may result in dismissal.
An employee’s right to express frustration does not necessarily protect conduct that crosses the line into serious misconduct.
The circumstances and content of the communication remain important.
Conclusion
Falcon Cleaning (Pty) Ltd v CCMA and Others demonstrates that the question of whether an employee’s conduct amounts to gross insolence cannot be answered without considering the surrounding circumstances.
The Labour Court accepted that the employee’s comment about “cheap pants” could reasonably be understood as an expression of frustration rather than gross insolence.
The Court also found that the WhatsApp posts did not sufficiently connect the employee’s conduct to reputational harm suffered by the employer. The emotional incident following the disciplinary charges likewise did not justify the dismissal on the evidence.
Most importantly, the judgment reinforces the limited nature of a Labour Court review of a CCMA arbitration award. The Court is not simply entitled to substitute its own view for that of the Commissioner. The relevant question is whether the decision falls within the range of reasonable decisions available to a reasonable decision-maker.
For employers, the case is a reminder that dismissal for insolence or reputational harm requires careful consideration of context, evidence and proportionality. For employees, it highlights the importance of understanding how workplace comments and social-media activity may be assessed in disciplinary proceedings.
Where dismissal is being considered or challenged, specialist South African labour-law advice should be obtained based on the specific facts of the matter.
Frequently Asked Questions
What is gross insolence in South African labour law?
Gross insolence involves conduct towards an employer or person in authority that is sufficiently serious and disrespectful to justify serious disciplinary action. Whether conduct amounts to gross insolence depends on the circumstances and context of the particular case.
Can an employee be dismissed for being insolent?
Potentially, but not every insolent or disrespectful comment justifies dismissal. The employer must consider the seriousness of the conduct, the circumstances, the employee’s disciplinary record and whether dismissal is an appropriate sanction.
Can an employee be dismissed for a WhatsApp post?
Potentially. Social-media misconduct can justify disciplinary action where there is a sufficient connection to the employment relationship and the conduct is sufficiently serious. However, the content, context, audience and potential or actual harm are relevant.
Can an employee be dismissed for bringing an employer into disrepute?
Yes, serious conduct that damages an employer’s reputation may justify dismissal in appropriate circumstances. However, the employer should be able to establish the factual basis for the alleged reputational harm and demonstrate that dismissal is fair.
What is a Labour Court review of a CCMA award?
A review under section 145 of the Labour Relations Act is not simply an appeal against a CCMA Commissioner’s decision. The Court considers whether the arbitration award falls within the range of decisions that a reasonable decision-maker could reach.
What is the significance of Falcon Cleaning v CCMA?
The judgment demonstrates the importance of assessing alleged gross insolence and reputational harm in context. It also reinforces the deferential approach applied by the Labour Court when reviewing CCMA arbitration awards.
Article written by Craig Berkowitz
31 August 2026
Craig Berkowitz is a specialist labour lawyer and Acting Judge in the Labour Court of South Africa with extensive experience in CCMA arbitrations, disciplinary hearings and Labour Court litigation.
📞 083 453 1822
✉️ cblaw@netactive.co.za
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