Labour Appeal Court reinstates Woolworths supervisor over dismissal for ‘dumb’ remark. Image: Ai-Generated
A long-serving Woolworths supervisor who was dismissed for referring to cashiers as “dumb” has won her job back after the Labour Appeal Court in Durban ruled that the dismissal was excessively harsh for a single workplace remark.
The Labour Appeal Court ordered Woolworths to reinstate Gladys Arunachellam with retrospective effect to her dismissal date in May 2019, replacing her dismissal with a final written warning valid for 12 months.
Arunachellam, who had worked for the retailer for 28 years and held a supervisory position at the La Lucia Mall branch in Durban, was fired after allegedly describing till operators as “dumb” during a conversation with trainees and another employee in March 2019.
Although Arunachellam denied using the word and maintained that she had referred to staff as “confused” rather than “dumb”, the court upheld earlier findings that she had in fact used the offending term.
The dispute instead turned on whether dismissal was an appropriate sanction for the misconduct.
The Labour Appeal Court found that the Commission for Conciliation, Mediation and Arbitration (CCMA) commissioner who upheld the dismissal had failed to perform a crucial part of the fairness inquiry by not considering whether termination of employment was proportionate to the offence.
Acting Judge G N Moshoana together with judges Maletsatsi Mahalelo and van Niekerk JA concurring, said commissioners dealing with unfair dismissal disputes are legally obliged to determine not only whether misconduct occurred, but also whether dismissal is an appropriate punishment.
“The issue of substantive unfairness involves two legs,” the judgment said: whether the employee committed the misconduct and whether dismissal was an appropriate sanction for it.
The court criticised the commissioner for stating in the arbitration award that he had not been asked to consider the appropriateness of dismissal.
The judgment described this as factually incorrect, noting that the severity of the sanction had been explicitly raised during arbitration proceedings and that challenges to substantive fairness almost invariably include a challenge to dismissal as punishment.
The court found that the commissioner had effectively deferred to Woolworths’ disciplinary decision without independently assessing its fairness, amounting to a reviewable irregularity.
Arunachellam’s lengthy service and clean disciplinary record featured prominently in the court’s reasoning.
The judges noted that she had worked for the retailer for nearly three decades without incident and that there was no evidence she had a history of using offensive or abusive language in the workplace.
The court also rejected attempts to compare the incident with cases involving racist insults or language carrying racial overtones.
While Woolworths had argued that the comments damaged workplace relationships and pointed to previous dismissals for derogatory remarks, the court found that the examples provided involved racially charged language and were not comparable.
Importantly, the judges observed that the employees allegedly described as “dumb” were not present when the remark was made and therefore did not hear it themselves.
“It cannot be said that their feelings were hurt,” the court said, adding that claims of offence by those who overheard the remark had been exaggerated.
The judgment further found that Woolworths’ own disciplinary code contemplated progressive discipline rather than dismissal for a first offence of this nature.
It was further noted that the labour law generally favours corrective and progressive discipline, particularly for employees with long service and clean records.
The court concluded that a final written warning, rather than dismissal, was the appropriate response.
“The appropriate sanction to have been imposed for the offence of using the word ‘dumb’ is that of issuing the appellant with a final written warning valid for twelve months,” the judgment stated.
While the Labour Court had previously found the dismissal procedurally unfair and awarded Arunachellam three months’ compensation, the Labour Appeal Court overturned that finding, ruling that the disciplinary process had been procedurally fair.
The ultimate result was that Arunachellam’s dismissal was held to be procedurally fair but substantively unfair because the punishment did not fit the misconduct.
The supervisor was reinstated retrospectively to 6 May 2019. The order carries retrospective backpay from that date unless varied by agreement or a later court order.
sinenhlanhla.masilela@iol.co.za