Company policies and procedures are a set of internal guidelines that establish the rules within the company. These guidelines assist in communicating to employees what can and cannot be done in the workplace. An example of a company policy would be their dress code.
In the recent Judgement of Mofokeng vs The CCMA and Others (JR1200/18)  ZALCJHB 169, the South African Labour Court was faced with the question of Elegance versus Health and Safety in the workplace and to distinguish between dissatisfaction in the workplace and conduct that would amount to challenging the authority of the employer.
Tharisa Minerals (Pty) Ltd had adopted a policy and procedure in 2015 which covered issues of Health and Safety at the Mine; the policy included a clause which stated that appropriate shoes must be worn at all times and that high-heeled shoes were not allowed.
Ms Mofokeng, the applicant, in this case, was employed by Tharisa Minerals as a Human Resources Co-Ordinator. In September 2017, a director observed Ms Mafokeng wearing high heels and highlighted the dangers of wearing high heels to work to one of the managers. The policy adopted in 2015 was revised, and all employees were instructed to wear only flat shoes when entering the mine premises to reduce the risk of accidents. The employees were further informed that non-compliance with this instruction may lead to disciplinary action.
Ms Mofokeng was displeased with the policy as she desired to retain her femininity in the workplace, particularly because she had previously worn high heels without hindrance. She requested that her female colleagues come together to voice their dissatisfaction regarding the policy. Ms Mofokeng was charged with Gross Insubordination as well as incitement. The Head of Sustainable Development, Baker, viewed the employee’s actions to lobby against the policy as an act of challenging his authority. At a disciplinary enquiry, Ms Mofokeng was found guilty of both charges and subsequently dismissed. The CCMA found this dismissal to be fair.
The Labour Court, however, held that at any workplace, employees are entitled to question and resist the application of certain work rules and, in fact, have the right to strike on any matter of mutual interest. It was held further that a dress code at a workplace is a matter of mutual interest and, in certain instances, can be considered a term and condition of employment. An employer is not entitled to unilaterally change the terms and conditions of employment. If an employer does so, the employer is acting unlawfully. Therefore, an instruction to obey an unlawful instruction does not breed insubordination.
Taking the above into consideration, the court held that there was no justification for why high heels were not allowed. In terms of Section 11 of the Mine Health and Safety Act, employers are required to make records of identifying risks available for inspection by employees. Ms Mofokeng was not part of the risk assessment team, and her inputs, if any, were not taken into account during the assessment.
The court held that there was no indication of a severe and deliberate challenge or defiance to the policy. Moshoana, J maintained the view that the authority exercised by Baker was done so in an unlawful and/or unreasonable manner by not complying with the applicable legislation or unilaterally changing what used to happen in the past. The principle of legality does authorise a challenge through lawful means.
It was held further that the unilateral change of a dress code was tantamount to provocation – the reasoning being that Mofokeng went to work in high heels, barely ten days later, she was informed that she could not wear high heels anymore, and she became angry as a result, which caused her to think of means and ways of changing what was seemingly unfair conduct on the part of Tharisa Minerals.
On the charge of incitement, the court held that when an employee influences the minds of fellow employees to lawfully institute strike action in terms of the Labour Relations Act, that employee would not be guilty of incitement. There was no evidence that Ms Mofokeng influenced her fellow employees to engage in unprotected strike action.
For the above reasons, it was held that the findings that Ms Mofokeng was guilty of gross insubordination and incitement were not justifiable, and when applying the test in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others, the decision of CCMA Commissioner Matala falls outside the bands of reasonableness and is not constitutionally compliant.
The Arbitration Award issued by Commissioner Matala was set aside and replaced with an order that the dismissal of Mofokeng was procedurally fair but substantively unfair, and Tharisa Minerals (Pty) Ltd was ordered to reinstate Mofokeng retrospectively with effect from 16 October 2017.
Businesses have a right to implement policies and procedures. It is, in fact, an essential part of regulating the relationship between employer and employee; however, as we can see from the above case, it is essential to keep in mind that any employee has the right to question and resist the application of certain work rules and have the right to strike on any matter of mutual interest. Challenging a policy or procedure will not always amount to insubordination.
Article by: Shannen Brown
Dispute Resolution Official – CEO Gqeberha