In a recent verdict, the South African Labor Court reinstated an employee who was fired for expressing her displeasure with the company’s policy regarding wearing high-heeled shoes on mining sites.
According to law firm Webber Wentzel, the case focused on the need to distinguish between employees who express their dissatisfaction/grievances in the workplace and behavior that amounts to a challenge to authority and intentional violation of workplace rules.
The latter, depending on the circumstances, can amount to insubordination. The case also affirms workers’ right to hold a peaceful demonstration to have their grievances addressed by their employers, the law firm said.
In June 2015, the company adopted a policy and procedure related to the Mine Health and Safety Act (MHSA), which, among other things, provided that high heels and open shoes were not worn by its employees (policy).
However, the policy was ambiguous. It was not stated where exactly on the site high heels and open shoes were not allowed. This policy was also not fully adhered to at the mine’s headquarters, where the employee worked as an HR coordinator.
After one of the company’s directors saw the employee in headquarters wearing high-heeled shoes in September 2017, he raised the potential danger with one of the managers.
The management then hastily carried out a risk assessment, which showed that high-heeled shoes posed a safety risk. Employees were then instructed in a memorandum to wear only flat shoes on the mine site and were told that failure to comply with the instruction could result in disciplinary action.
A day before this note was released, the employee was again spotted wearing high-heeled shoes. She was summoned to the manager’s office and instructed to immediately comply with the policy and procedure, which she did.
She then expressed her displeasure to some of her colleagues and asked them to express their displeasure together, and approached a union leader to support the cause.
The employee’s manager viewed her actions as a challenge to his authority and accused her of gross insubordination and sedition. She was found guilty and discharged, and after being referred to the CCMA, the CCMA commissioner agreed with the employer.
Labor court ruling
The labor court ruled that the employee’s dismissal was unreasonable in terms of content and ordered the employer to re-engage her.
“The court ruled that when the policy was first passed in June 2015, there appeared to be no justification for banning high-heeled shoes and the company did not specify where on the mining site it would apply,” Webber Wentzel.
In addition, before the risk assessment was conducted in September 2017 (i.e. approximately two years after the policy was first adopted), the rule appeared invalid and unreasonable. The justification for the rule against wearing high heels only emerged after the risk assessment.”
With regard to the risk assessment, the court ruled that the MHSA requires an employer to record the assessed risks and make them available for inspection by employees. In addition, the process envisaged in the MHSA of identifying risks and/or conducting a risk assessment is subject to the principle of legality.
This means that an employee can approach a court to question the legality of the risk assessment report. An employee’s rights to question a policy and/or the risk assessment justifying a policy are unimpeded. Employees have a constitutional right to freedom of expression, including expressing their views on the fairness or otherwise of a workplace rule and/or policy.
“The Court said that insubordination not only manifests itself in a refusal to obey a reasonable and lawful instruction, but can also manifest itself in a challenge or opposition to the authority of the employer, provided that the authority imposed is lawful and reasonable. is,” Webber Wentzel said.
The factors to consider to determine whether misconduct constitutes insubordination are:
- The willfulness of the employee’s resistance;
- Defied the reasonableness of the assignment; and
- The employer’s actions prior to the alleged act of insubordination.
“Provocation by an employer is an important mitigating factor that can make dismissal inappropriate,” the company said.
The court ruled that a unilateral change to a dress code amounted to provocation and even if the employee disobeyed, which was not the case, dismissal was inappropriate.
The court ruled that there was no evidence that the employee deliberately contested her employer’s authority or willfully defies policy and that an expression of dissatisfaction does not amount to persistence or willfulness or to challenge and/or resist authority.
With regard to the charges of sedition, the court ruled that the finding that the employee was guilty of sedition is not justified on any ground.
“Incitement is a common law offense defined as the intent by words or behavior to influence the mind of another to commit a crime,” Webber Wentzel said.
The employee did not incite anyone to commit a crime, nor did she incite a colleague to take unprotected strike action. Instead, she just expressed her displeasure and asked a few employees to join her in approaching management to advocate wearing high-heeled shoes, as they had worn them in the past without any issues.
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