In a recent judgment, South Africa’s Labour Court reinstated an employee who had been dismissed for voicing her dissatisfaction with the company’s policy on wearing high-heeled shoes on mining premises.
According to legal firm Webber Wentzel, the case centred on the need to distinguish between employees expressing their dissatisfaction/grievances in the workplace and conduct that amounts to a challenge of authority and willful defiance of workplace rules.
The latter, depending on the circumstances, may amount to insubordination. The case also restates employees’ rights to hold a peaceful demonstration in order to have their grievances addressed by their employers, the legal firm said.
In June 2015, the company adopted a policy and procedure in terms of the Mine Health and Safety Act (MHSA), which, among other things, provided that high heels and open shoes were not to be worn by its employees (policy).
The policy was, however, ambiguous. It did not mention where exactly on the premises the high heels and open shoes were not allowed. There was also no full adherence to this policy, particularly at the main office complex of the mine, where the employee worked as an HR coordinator.
After one of the company’s directors spotted the employee wearing high-heeled shoes in the main office complex in September 2017, he raised the potential danger with one of the managers.
Management thereafter hastily arranged for a risk assessment to be conducted, which indicated that high-heeled shoes posed a safety risk. Employees were then instructed in a memorandum only to wear flat shoes on the mine premises and told that non-compliance with the instruction could result in disciplinary action.
A day before this memorandum was issued, 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 subsequently expressed her dissatisfaction to some of her colleagues, asking them to voice their dissatisfaction together, and she approached a trade union leader to support the cause.
The employee’s manager viewed her actions as a challenge to his authority and charged her with gross insubordination and incitement. She was found guilty and dismissed, and on referral to the CCMA, the CCMA commissioner agreed with the employer.
Labour court ruling
The Labour Court found that the employee’s dismissal was substantively unfair and ordered the employer to reinstate her.
“The court held that when the policy was first adopted in June 2015, there appeared to be no justification for prohibiting high-heeled shoes and the company did not specify where on the mining premises this applied,” said Webber Wentzel.
“Furthermore, before the risk assessment was undertaken in September 2017 (i.e. about two years after the policy was first adopted), the rule seemed invalid and unreasonable. The justification of the rule against wearing high-heeled shoes only emerged after the risk assessment.”
On the risk assessment, the court held that the MHSA requires an employer to record the risks assessed and make them available for inspection by employees. Furthermore, the process contemplated in the MHSA, of identifying risks and/or conducting a risk assessment is subject to the principal of legality.
This means that an employee may approach a court to question the legality of the risk assessment report. The rights of an employee to question a policy and/or the risk assessment that justifies a policy are untrammelled. Employees have a constitutional right to freedom of expression, which includes expressing views about the reasonability or otherwise of any workplace rule and/or policy.
“The Court said that insubordination does not only manifest itself in refusal to obey a reasonable and lawful instruction but can also manifest in a challenge or defiance of the authority of the employer-provided the authority imposed is lawful and reasonable,” Webber Wentzel said.
The factors to be considered to establish whether misconduct amounts to insubordination are:
- The willfulness of the employee’s defiance;
- The reasonableness of the instruction defied; and
- The actions of the employer prior to the purported act of insubordination.
“Provocation by an employer is an important mitigating factor which may render dismissal inappropriate,” the firm said.
The court held that a unilateral change to a dress code is tantamount to provocation and even if the employee was insubordinate, which she was not, dismissal was inappropriate.
The court held that there was no evidence that the employee deliberately challenged the authority of her employer or willfully defied the policy and that an expression of dissatisfaction does not equate to persistence or willfulness or challenge and/or defiance of authority.
On the allegations of incitement, the court held that the finding that the employee was guilty of incitement was not justifiable on any basis.
“Incitement is a common-law criminal offence defined as the intention by words or conduct to influence the mind of another in the furtherance of committing a crime,” Webber Wentzel said.
The employee did not incite anyone to commit a crime, nor did she incite any co-worker to engage in unprotected strike action. Instead, she merely voiced her dissatisfaction and asked a few employees to join her in approaching management to plead a case for wearing high-heeled shoes, since they had worn them in the past without any difficulties.