Court Rules in Favor of Employee Dismissed Over Campaign Photo Imitation

The Labour Court in Cape Town dismissed an application by Academy Brushware (Pty) Ltd to overturn a Commission for Conciliation, Mediation and Arbitration (CCMA) ruling in favour of an employee dismissed for gross insubordination after posting social media photographs, according to court records. Acting Judge AC Oosthuizen delivered the judgment in the matter involving Geswent, who started working for the company in September 2002 and served as a computer clerk from 2013 onwards.

Social Media Posts Trigger Gross Insubordination Dispute

The legal dispute stems from photographs posted on social media in March 2017, according to court documents. Academy Brushware argued that the posts violated professional standards and the company’s reputation, maintaining that Geswent deliberately defied a direct order from her manager to stop posting such images. The photographs featured Geswent posing next to a marketing cutout model depicting a blonde woman wearing shorts and high heels against a backdrop displaying the company name and brushware products.

According to employer evidence presented by manager Kingham, he instructed Geswent not to share similar photographs online. The company stated she posted more pictures later that same day despite the warning, which formed the basis of the gross insubordination charge. Geswent disputed receiving any such directive, acknowledging a discussion with Kingham but denying he prohibited the posts.

Court Finds Employer Failed to Prove Direct Instruction

Judge Oosthuizen ruled that the employer carried the burden of proof to establish the facts supporting its case, finding insufficient evidence to prefer Kingham’s version of the conversation over Geswent’s account. The judgment highlighted that insubordination demands more than a simple failure to follow employer wishes; the refusal must be intentional, and the instruction must be lawful and reasonable, according to the court.

Several critical factors weighed against the employer’s case during proceedings. The court noted the complete absence of a workplace code or established set of rules regulating employee social media activity. Furthermore, the photographs posted by Geswent shared a similar character with the company’s own marketing cutout model, and the employer presented no evidence of actual business harm, customer complaints, or marketplace concern resulting from the posts.

Compliance With Removal Orders Rules Out Wilful Defiance

Another pivotal element in the ruling involved events on March 20, 2017. While the employer argued that Kingham issued another instruction not to post photographs and relied on the fact that Geswent kept quiet about her earlier post, the court observed that Geswent promptly complied when explicitly told to remove the images.

Judge Oosthuizen found that this direct compliance contradicted any conclusion of wilful and persistent defiance. Although the court noted that the CCMA conflated the determination of guilt for insubordination with the separate assessment of whether dismissal constituted an appropriate sanction under the Labour Relations Act’s Code of Good Practice, the Commissioner’s ultimate conclusion remained reasonable. The Labour Court consequently dismissed the employer’s review application.

Frequently Asked Questions

What was the core reason for the employee’s dismissal?

Academy Brushware dismissed Geswent for alleged gross insubordination after she posted photographs of herself alongside a company marketing cutout on social media, which the employer claimed violated a manager’s direct instruction.

Did the company have a formal social media policy?

No. The court found there was no evidence of an established workplace code or set of rules governing employee social media posts.

What did the Labour Court decide regarding the CCMA ruling?

Acting Judge AC Oosthuizen dismissed the employer’s application to overturn the CCMA finding, ruling that the ultimate conclusion in favour of the employee was reasonable.