In a recent ruling, the South African Labor Court reinstated a worker who was fired for voicing her dissatisfaction with the company’s policy of wearing high-heeled shoes in the mines.

According to the law firm Webber Wentzel, the case focused on the need to distinguish between employees who express their dissatisfaction/complaints in the workplace and conduct that constitutes defiance of authority and willful disobedience of workplace rules.

The latter, depending on the circumstances, can lead to disobedience. The case also restores the rights of employees to peacefully demonstrate to have their grievances addressed by their employers, the law firm said.

The facts

In June 2015, the Company adopted a policy and procedure under the Mine Health and Safety Act (MHSA) which, among other things, required that its employees not wear high heels and open-toed shoes (the Policy).

The policy, however, was mixed. Where exactly in the premises high heels and open shoes are prohibited is not indicated. This policy was also not fully followed, particularly in the mine’s main office complex, where the employee worked as an HR coordinator.

After one of the company’s directors noticed a female employee wearing high-heeled shoes in the main office complex in September 2017, he told a manager about the potential danger.

After that, management hurriedly organized a risk assessment, which found high-heeled shoes to be a safety hazard. The memo then directed employees to wear only flat-soled shoes on the mine site and said failure to follow the instruction could result in disciplinary action.

A day before the publication of this memorandum, the employee was again spotted wearing high-heeled shoes. She was called into the manager’s office and ordered to immediately enforce policy and order, which she did.

She subsequently expressed her displeasure to some of her colleagues, asked them to express their displeasure together, and approached a union leader to support the cause.

The employee’s supervisor considered her actions to be a challenge to his authority and accused her of malicious insubordination and incitement. She was found guilty and dismissed, and the referral to the Central Committee of the Central Committee agreed with the employer.

Resolution of the labor court

The labor court recognized the employee’s dismissal as unfair in substance and obliged the employer to reinstate her.

“The court ruled that when the policy was first adopted in June 2015, there seemed to be no justification for banning high heels, and the company did not specify which places in the mining industry it applied to,” Weber Wenzel said.

“Furthermore, 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 prohibiting the wearing of high-heeled shoes emerged only after a risk assessment.’

With respect to risk assessment, the court held that the MHSA requires the employer to record the assessed risks and make them available for inspection by employees. Furthermore, the process under the MHSA of identifying risks and/or carrying out a risk assessment is subject to the principle of legality.

This means that the employee can go to court to challenge the legality of the risk assessment report. An employee’s rights to question the policy and/or the risk assessment justifying the policy are not limited. Employees have a constitutional right to freedom of expression, which includes expressing opinions about the reasonableness or unreasonableness of any workplace rule and/or policy.

“The court stated that insubordination is not only a failure to obey reasonable and lawful instructions, but may also be a challenge to or disobedience of an employer’s authority, provided the authority imposed is lawful and reasonable,” Weber Wenzel said.

The factors to be considered in determining whether a breach of conduct constitutes insubordination are as follows:

  • Willful disobedience of an employee;
  • The reasonableness of the instruction is disputed; and
  • Actions of the employer before the alleged act of insubordination.

“Employer provocation is an important mitigating factor that may render a dismissal inappropriate,” the firm said.

The court found that unilaterally changing the dress code amounted to provocation and even if the employee did not comply, which she did not, the dismissal was inappropriate.

The court ruled that there was no evidence that the employee intentionally challenged her employer’s authority or intentionally violated policy, and that the expression of displeasure did not amount to assertiveness or arbitrariness or defiance and/or disobedience to authority.

With respect to the allegations of incitement, the court found that the finding that the employee was guilty of incitement was not justified on any basis.

“Incitement is a common law criminal offense defined as the intent, by word or conduct, to influence the mind of another person in furtherance of the commission of a crime,” Weber Wentzel said.

The employee did not incite anyone to commit an offense, nor did she incite any of the employees to go on an unprotected strike. Instead, she simply expressed her displeasure and asked several employees to join her in petitioning management to file a case for wearing high heels, as they had previously worn them without any difficulty.

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