A 360° View for Employers
The Labour Appeal Court's judgment in Golden Arrow Bus Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & Others (19 June 2025) is a reminder that winning the "unfair dismissal" label does not guarantee an employee the remedy they most want: reinstatement. In this case a senior manager's own words and conduct during the disciplinary and arbitration processes persuaded the commissioner – and, ultimately, the LAC – that putting him back in the workplace would be intolerable. For employers the decision offers both a litigation playbook and a caution: success turned not on proving misconduct beyond doubt, but on meticulously documenting how the employment relationship had broken down past repair.
How the dispute unfolded
Kevin Jacobs had spent 26 years with Golden Arrow and was the point-person for rolling out an automated smart card fare system. He secured leave from 11 to 18 October 2018 even though the go-live date fell in the middle of that period, assuring senior management that everything was on track. On launch day the system collapsed: no sales platform, a shortage of cards, and 18 000 smart cards missing. When Jacobs returned, management called a meeting to establish what went wrong. He declared he "did not trust anyone," including the general manager and the in-house legal adviser, and flatly refused to co-operate with the investigation. That stance prompted charges of gross negligence, dishonesty and reputational harm; after a disciplinary hearing he was dismissed on 13 March 2019.
Jacobs referred an unfair-dismissal dispute to the CCMA. The commissioner accepted that Golden Arrow had not proved the misconduct charges to the required standard but found Jacobs' post-dismissal behaviour telling. He had withheld crucial information, shifted blame to junior staff, alleged that management destroyed evidence, and insisted he was "set up" – all without proof. The commissioner concluded that returning such a senior employee to the fold would be "too much relationship damage" and instead awarded the statutory maximum of 12 months' compensation.
Displeased, Jacobs asked the Labour Court to review the award. The court held that the commissioner had not supplied "clear and convincing reasons" for refusing reinstatement and substituted a full retrospective reinstatement order.
Golden Arrow then appealed. The Labour Appeal Court overturned the Labour Court, restoring the commissioner's award and finding the employment relationship intolerable within the meaning of section 193(2)(b) of the Labour Relations Act. The LAC stressed that intolerability demands "weighty reasons, accompanied by tangible evidence." Jacobs' repeated distrust of leadership, refusal to assist, and unsubstantiated accusations provided exactly that evidence. A reviewing court, the LAC said, must respect a commissioner's value-judgment on remedy unless it is one no reasonable arbitrator could make.
Five legal principles that stood out
First, reinstatement is primary, but not automatic. Section 193 presumes reinstatement once a dismissal is found unfair yet allows four exceptions. "Intolerability" remains a high bar, but when crossed it trumps the default.
Second, the test is objective, not emotive. The employer's subjective irritation is irrelevant; what matters is whether documented facts show the relationship has become unworkable.
Third, misconduct and remedy are separate enquiries. Even where misconduct is unproven, an employee's own litigation conduct can show why future co-operation cannot function.
Fourth, senior status cuts both ways. Higher responsibility entails higher expectations of accountability and professional restraint. Jacobs' long service did not outweigh the damage caused by his conduct.
Finally, review courts give commissioners leeway on remedy. Unless the commissioner ignored material evidence or applied the wrong test, the Labour Court should not replace the arbitration award with its own view.
What employers should do when allegations fly
- Build the evidentiary record early. Minute every meeting, keep emails, and obtain contemporaneous witness statements whenever an employee levels serious accusations or refuses co-operation. A tidy paper-trail was decisive for Golden Arrow.
- Separate issues and keep them distinct. Run the misconduct enquiry on its merits, but simultaneously track behaviours — like threats, stone-walling or false claims — that undermine trust. These may later buttress an intolerability defence even if dismissal is ruled unfair.
Practical reflections for HR and in-house counsel
When a disciplinary drama escalates, managers often focus solely on proving the misconduct charge sheet. Golden Arrow took a wider lens: it also captured how Jacobs behaved after being challenged. The LAC embraced that wider view. For employers the judgement signals that cultivating a habit of meticulous documentation is not mere bureaucracy; it can mean the difference between reinstating a hostile employee and paying capped compensation.
Equally, the decision should temper how aggressively employers frame their own allegations. "Intolerability" remains an exceptional outcome. The paper trail must show more than strained relations; it must demonstrate a level of unworkability that no reasonable business should be expected to tolerate. Unsupported claims of "loss of trust" will fail unless matched by concrete examples: refusal to share key data, unfounded allegations of fraud, sabotage of an investigation, or persistent public denigration of leadership.
At the same time, employers should not read the judgment as licence to bypass due process. The commissioner still found Jacobs' dismissal substantively unfair; Golden Arrow escaped reinstatement only because it proved a different statutory hurdle. A procedurally and substantively sound dismissal remains the best inoculation against costly litigation.
The LAC's message is clear: words uttered in the heat of a disciplinary battle can have long-lasting career consequences. For employers, the ruling underscores the importance of recording every interaction and of treating the "relationship" question as seriously as the "misconduct" question. For employees, it is a caution that allegations without proof may close the very door they seek to reopen.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
