The Labor Court of Appeals recently issued an order1 Failure to grant leave to appeal the judgment2 Labor Court, after the Labor Court reinstated an employee who had been fired for complaining about the company’s policy of wearing high-heeled shoes in my home premises.
In this case before the Labor Court and the Labor Appeal Court, Weber Wenzel acted for Litishani Mofokeng, an employee who was dismissed from Tharisa Minerals (Pty) Ltd (Tharisa / Company) after complaining about the company’s policy of excluding women. Wearing high heels.
The Labor Court in its decision, among other things, emphasized the need to distinguish between employees voicing their grievances/grievances at the workplace and challenging authority and deliberate behavior that violates workplace rules. The latter can be subject to submission depending on the situation. The case also defines the right of workers to hold a peaceful demonstration to have their grievances addressed by their employer.
Company policy
In June 2015, Tarissa approved a policy and procedure in accordance with the Mining Health and Safety Act (MHSA), which, among other things, stated that high heels and open shoes could not be worn by their employees (policy). The policy was ambiguous. It is not specified where high heels and open shoes are allowed on Tarisa’s grounds. He was also not fully respected, especially at the mine’s headquarters, where Mofokeng worked as a labor coordinator.
One of Tarisa’s directors raised the incident with one of his managers in September 2017 after seeing Mofokeng wearing high heels in the main office premises. He pointed out that high-heeled shoes pose a safety risk and the administration hastily made arrangements to conduct a risk assessment. Workers were instructed in a memo to wear only taped shoes in the mine and were told that failure to comply would result in disciplinary action.
A day before this memo was released, Mofokeng was seen wearing high heels again. She was called into the manager’s office and immediately ordered to comply with the policy and procedure, which she did (i.e. she took off her high heels.) She expressed her grievances to some of her colleagues, asked them to voice their grievances together, and approached a union leader.
Mofokeng’s manager sees her actions as a challenge to his authority and accuses her of gross subjugation and incitement. She was found guilty and dismissed, and sent to the CCMA, where the CCMA commissioner agreed with Tharisa.
Mofokeng then approached the Labor Court. We represented Mofokeng in the Labor Court where she was successful in having the CCMA Commissioner’s decision reviewed and set aside. We also represented Mofokeng before the Labor Appeal Court, when the company applied for leave to appeal against the judgment of the Labor Court. The Labor Court of Appeal refused to grant leave to appeal and issued an order against the company.
Findings of the Labor Court
The Labor Court found Mofokeng’s dismissal to be grossly unfair and ordered Tharisa’s reinstatement (effective 16 October 2017). The court ruled in June 2015 that there was no reason to ban high-heeled shoes when the policy was first approved, and the company did not specify where it would apply on campus. Also, before the risk assessment was conducted in September 2017 (that is, almost two years after the policy was first approved), the regulation appeared invalid and illogical. The approval of the law banning the wearing of high heels came after a risk assessment.
On risk assessment, the court said the MHSA requires an employer to document the assessed risks and have them monitored by employees. The process envisaged in the MHSA for identifying risks and/or carrying out a risk assessment is subject to the principle of legality. This means that an employee can go to court to question the legality of the risk assessment report. The Court held that the rights of an employee like Mofokeng to request a policy and/or a risk assessment justifying a policy are unencumbered. Employees have a constitutional right to free expression, which includes expressing opinions about the reasonableness or otherwise of any workplace law and/or policy.
As the court explained, submission is not only to not comply with reasonable and legal instructions, but also to oppose or violate the authority of the employer – if the authority imposed is legal and reasonable. Factors to be considered in order to prove that misconduct leads to subjugation are the willful refusal of the employee. Reasonableness of the challenged instruction; and the employer’s action before the intended act of obedience. Frustration by an employer is an important mitigating factor that can render dismissal inappropriate.
The court said that unilaterally changing the dress code was tantamount to harassment and that even if Ms Mofokeng was a subordinate, which she was not, her dismissal was not justified. The court held that there was no evidence that Ms Mofokeng had deliberately defied her employer’s authority or deliberately breached the policy and that the statement of satisfaction did not amount to persistent or deliberate or defiant and/or defiance of authority.
The court held that the decision that Mofokeng was guilty of incitement was not justified on any grounds. Incitement is a common criminal offense defined as planning by words or conduct to influence the mind of another person in the course of committing a crime. Mofokeng did not incite anyone to commit a crime. Nor did she incite any of our colleagues to participate in an unprotected strike. Mofokeng only said she was satisfied and asked a few workers to approach the management as they had been dressed without any problems in the past.
1. Tharisa Minerals v Mofokeng – Best of Tharisa Minerals (8 November 2022)
2. Mofokeng v CCMA and others (27 June 2022)
