Baker Fired Over 11,000 Loaves of Bread Wins Reinstatement

The Labour Court has dismissed Pioneer Foods’s review application against a CCMA award that had set aside its dismissal of a long-serving employee. The case, heard on 3 September 2024, centred on whether the termination of Production Supervisor Thabani Khumalo was substantiated by a reasonable instruction that he failed to follow, and whether the losses incurred by the company were attributable to his actions.

At the heart of the dispute is the allegation by Pioneer Foods that on 15 October 2020, Mr Khumalo failed to adhere to a critical directive intended to remedy quality issues with the brown bread flour used at the company’s Aeroton Bakery. On 29 December 2020, following charges of gross negligence, failure to follow instructions, and gross insubordination, the company dismissed Mr Khumalo. The specific allegations were that his deliberate decision not to manually blend brown bread flour with white bread flour resulted in losses of approximately R39,853.00, as it was calculated that about 11,070 loaves were affected due to poor production quality.

The dispute emerged after Mr Khumalo referred an unfair dismissal claim to the Commission for Conciliation, Mediation and Arbitration (CCMA). According to the record, the quality issue was first discovered on 12 October 2020, when it became evident that the brown bread flour was compromised. In response, a management meeting was convened on 14 October 2020 involving Acting Production Manager David Madimatswana, Operations Manager Joshua Mphahlele, and Regional Technical Manager Thoko Radebe. The meeting concluded with an order that, to restore the quality of the bread, a proportion of white bread flour should be added to the brown bread flour and, crucially, that the mixing should be done manually, rather than by automatic means, to avoid further losses in throughput.

Evidence indicates that while the two other Production Supervisors received and acted upon the directive to execute the manual mixing, the instruction was conveyed to Mr Khumalo only at approximately 10:00 on 15 October 2020. This was notably four hours after Mr Khumalo had begun his shift. By the time the instruction was delivered, he had reportedly shifted his focus to baking white bread, a product not affected by the said quality issue. Mr Khumalo maintained that he was never properly informed of the need for manual mixing and that he only learned of the requirement later from his colleague.

During the arbitration proceedings, evidence from both parties’ witnesses largely concurred on the sequence of events between 12 and 15 October 2020. However, the applicant’s witnesses provided conflicting accounts regarding the precise nature of the instruction. In his testimony, Mr Madimatswana recounted that he had explicitly instructed all Production Supervisors to retrieve white bread flour from the old production plant and mix it manually with the brown flour. Yet, under cross-examination, he admitted that he did not contact Mr Khumalo at the start of his shift to reiterate the manual aspect of the directive. This lapse in follow-up, compounded by the timing of the communication, formed the crux of Pioneer Foods’ argument that Mr Khumalo’s dismissal was justified and that the losses incurred were a direct result of his failure to act on a clearly communicated, reasonable instruction.

In its review application, Pioneer Foods contended that the arbitration award was unreasonable. The company argued that the CCMA Commissioner should have upheld the dismissal based on the existence of a clear, reasonable instruction, and that the award misapplied established legal principles regarding the evaluation of conflicting witness accounts. Pioneer Foods further relied on precedents such as Stellenbosch Farmers Winery Group Ltd v Martell, contending that the evidence supported a finding of insubordination. They also pointed to a disciplinary hearing in which it was noted that Mr Khumalo had pleaded “guilty,” although this point was undermined by discrepancies in the hearing’s documentation.

In her analysis, the CCMA Commissioner found that the evidence did not conclusively support the charge of insubordination. The absence of proof that Mr Khumalo was adequately informed about the requirement for manual mixing, combined with the fact that the instruction was only relayed several hours into his shift, left significant doubt as to whether a reasonable instruction had been in place. Furthermore, the arbitration award was deemed to be within the standards of reasonableness given the totality of the evidence, including the timing, method of communication, and subsequent actions of the supervisors.

Acting Judge MM Baloyi, in delivering the judgment, emphasised that the role of the review court is not to re-assess the fairness of the dismissal but rather to determine if the arbitration award was reasonable. Citing established jurisprudence from Palluci Home Depot v Herskowitz, as well as decisions from Fidelity Cash Management Services v CCMA and Sidumo v Rustenburg Platinum Mines Ltd, the Judge ruled that even if an alternative decision might have been reached, the arbitration award was not subject to review merely because the reviewing court might have decided differently.

Consequently, the review application was dismissed, and no costs were ordered in light of the ongoing employment restoration process.

You can read the full Pioneer Foods (Pty) Ltd t/a Aeroton Bakery v CCMA judgement here.

Written by Theo Tembo

Written by Theo Tembo