Labour Court Reviews Supervisor’s Dismissal Case for Inappropriate Comments

In the matter of ARUNACHELLAM V WOOLWORTHS (PTY) LTD AND OTHERS (D217/2020) [2024] ZALCD 35 (26 SEPTEMBER 2024) the Labour Court examined the fairness of an employee’s dismissal after she was accused of making inappropriate comments about her subordinates.

The employee, a supervisor for 28 years earning R10 200 per month, was dismissed on 6 May 2019 for alleged misconduct. She referred the dispute to the CCMA under section 191(5)(a) of the Labour Relations Act (LRA). After conciliation failed, arbitration was held on 29 August 2019.

The employer, a national retailer, argued that the employee’s use of racially insensitive language warranted dismissal. She contested both procedural and substantive fairness and sought reinstatement.

During arbitration, the employee’s legal representative successfully applied for legal representation due to an imbalance, as the employer was represented by an Employee Relations (ER) Specialist.

Multiple witnesses testified. A key witness stated that the employee called her till operators "dumb" while working alongside a colleague. Another witness, employed for 11 years, confirmed that the employee refused to assist at customer service tills, claiming confusion with cashiers. Two managers corroborated the incident, and the Regional HR Business Partner testified about racial tensions at the store. The employee denied using inappropriate language, insisting she had said "confused."

The employer charged her with “gross misconduct” for making inappropriate comments in front of colleagues, negatively affecting workplace relationships. It cited its disciplinary code, which allows dismissal for serious misconduct.

The employee challenged the arbitration outcome, arguing that the Commissioner failed to consider all relevant facts and laws. She claimed insufficient preparation time for her disciplinary hearing, restrictions on questioning witnesses, and the Commissioner’s failure to wait for her closing arguments, delayed due to the COVID-19 lockdown.

The Labour Court found that the Commissioner committed a gross irregularity by not considering the delayed closing arguments. While the dismissal was substantively fair, procedural deficiencies impacted fairness.

The Court acknowledged that the employer had not given the employee sufficient preparation time, and the Commissioner failed to fully address this issue. However, it agreed that the employee’s conduct damaged trust, justifying dismissal.

As a result, the arbitration award was set aside. The Court ruled that the dismissal was substantively fair but that due process was not followed. The employer was ordered to compensate the employee with three months’ salary for procedural unfairness. No cost order was made.

This case highlights the need for procedural fairness in disciplinary hearings. Employers must ensure employees have a fair chance to present their defence. While misconduct may justify dismissal, failure to comply with fair procedures can result in compensation, even if the dismissal is upheld.

View our upcoming events: Upcoming Events

*All workshops are offered as customised in-house training that can be presented virtually or on-site.

"Global Business Solutions (GBS) - Your Partner in Strategic HR Compliance"