Johannesburg – A woman who was fired for gross insubordination for wearing heels which were declared a safety hazard on site at a mining company has won her appeal at the Labour Court.
Mining Company Tharisa Minerals employee Litshani Syphia Mofokeng was fired over five years ago by her employer for wearing heels at the mine. The heels, according to the company's policy, were a safety hazard.
Labour Court Judge Graham Moshoana ordered the company to reinstate Mofokeng and compensate her for her time away from work and set the case aside.
Mofokeng was fired in 2017 and also lost an appeal at the CCMA.
“The outcome is not one that a reasonable decision maker may reach. The award is reviewable in law,” Moshoana said in a June 2022 judgment.
“Dismissing her was inappropriate in the circumstances where she was clearly provoked into the steps that she took.”
Mofokeng, whom the court found that was simply voicing her grievances and exercising her right to question the policy also argued that at no point was she insubordinate and the grounds of her dismissal from the workplace were not fair.
Mofokeng had worked as a human resources co-ordinator between September 2013 until she was fired in 2017.
She had been warned against wearing heels.
The company later found her guilty of gross insubordination and incitement of company employees, after she attempted to lobby other employees to support her in trying to maintain a feminine look in the workplace.
The company found Mofokeng guilty of going against clause 8.13 in the company policy that was drafted in June 2015, as part of the health and safety procedure at the mine that stated “appropriate shoes should be worn at all times and slippers, high heels and open shoes were not allowed.”
However, this policy failed to mention where high heels, slippers or open shoes were not allowed in the premises, the Labour Court found.
The policy was further amended in September 2017 stating that flat shoes were to be worn to work at all times on Therisa Premises.
This came after Mofokeng was called by Derek Baker, who was the mine’s head of sustainable development, to his office to discuss her dress code which included her heels.
On September 26, 2017, Baker caught wind that Mofokeng had expressed her dissatisfaction about the policy.
He interviewed employees she made contact with and decided to charge Mofokeng with gross insubordination. He viewed Mofokeng’s action to lobby others against the memorandum, as an act of challenging his authority since the memorandum was issued by the operations manager at his behest, which led to her dismissal.
Moshoana found that Mofokeng had a right to lobby other colleagues on the heels matter and this could not be defined as incitement.
Mofokeng initially took her case to the CCMA where she lost, however the arbitration ruling was set aside by the Labour Court after it found that Mofokeng being guilty of gross insubordination and incitement was not justifiable.
The Labour Court also found that Mofokeng’s input was not taken into account in the amendment of the policy which resulted in the change of dress code and the risk which was defined in the policy was very unlikely to occur in their specific working environment.
The company was ordered to reinstate Mofokeng and compensate her for her time away from work and set the case aside.
IOL