The Labour Court last week, 12 August, dismissed an application by Academy Brushware to review a CCMA decision that ruled an employee's dismissal for gross insubordination unfair.
Background
The employee, a computer clerk with a 15-year employment history with the company, was dismissed in 2017 for gross insubordination following a disciplinary enquiry.
It was alleged she had “posted pictures on social media which are inconsistent with the company’s reputation and level of professionalism in direct defiance of your manager’s instructions not to do so”.
The pictures in question were of the employee standing next to one of the company's marketing campaign pop-up images - a cutout model of a blonde woman in a pair of shorts and high heels, standing against a backdrop featuring the company's name and a collection of its products.
In the photographs shared on social media, the employee was similarly dressed in shorts and heels and was evidently trying to emulate the cutout model's pose.
The employer stated that in response to the initial post, one of the managers instructed the employee not to share such pictures on social media, but that she later posted similar photographs "in direct defiance of this instruction".
While the employee conceded there had been an initial discussion about the photos, she disputed that her manager had told her not to post the pictures on social media at that time. She did, however, remove the photos when instructed to do so three days later.
Pascale Towers and Chloë Loubser 29 Jul 2026 CCMA judgment
In the CCMA ruling, the Commissioner did not indicate whose version of events he accepted; however, it was up to the employer to prove its version to be fact.
The Commissioner had to determine the seriousness of the employee's conduct and under which circumstances insubordination warrants dismissal.
In coming to his conclusion, the Commissioner relied on these facts:
- There was no evidence of an established workplace code or set of rules relating to posting on social media.
- The photographs in which the employee adopted the various poses did not appear markedly different, in character or any other respect, from the photograph of the cutout model.
- There was no evidence that the employer's business suffered any actual harm by way of customer complaints or concerns as a result of the posts.
Although the details of the initial discussion about the images remained in dispute, the employee did remove the photos when instructed to do so a few days later. This evidence therefore did not prove "persistent or ongoing refusal" by the employee to obey an instruction.
All this considered, the Commissioner ruled dismissal was too harsh a penalty.
Tania Broughton 22 Jul 2026 In the Labour Court
Upon reviewing the Commissioner's decision, the Labour Court in Academy Brushware v CCMA and Others stated: "To an extent, the Commissioner conflated the questions of whether the employee was guilty of insubordination and the question of whether the act complained of warranted dismissal."
However, that did not mean the ultimate conclusion arrived at was one that a reasonable decision-maker could not have reached.
The review application was dismissed, with no order as to costs.
Takeaways for employers
When disciplining employees for online behaviour, employers cannot rely on vague expectations or generalised claims of harm. An employer must:
- Have a clear, communicated social media policy.
- Provide unambiguous, direct instructions when asking an employee to take content down.
- Demonstrate real, actual prejudice or harm caused to the organisation.
