A Cape Town operations manager who was dismissed after swearing at a female subordinate and physically grabbing her during a heated workplace confrontation has lost his bid to have the dismissal overturned.
Acting Judge W Jacobs of the Labour Court in Cape Town dismissed RL’s review application against an arbitration award that found his dismissal by DSV Solutions (Pty) Ltd to be substantively fair.
The court found that the arbitrator’s decision fell well within the range of decisions that a reasonable decision-maker could make on the evidence before him.
Workplace confrontation
RL was appointed as an operations manager by DSV Solutions in January 2021.
The dispute arose from an incident in December 2022 involving RL and one of his colleagues, PV.
According to the judgment, PV wanted to work overtime, but RL, as her manager, refused her request. She did not accept his decision, and the disagreement escalated into a heated argument.
During the confrontation, both employees used profanities. RL told PV to “stop fucking interrupting me”, while she also repeatedly used the same expletive.
The situation escalated when PV turned around to leave. RL approached her and placed his hand or hands on her shoulders in an attempt to turn her around.
Two employees witnessed the incident, while several others were in the immediate vicinity.
Both RL and PV were subsequently subjected to disciplinary hearings, and both were dismissed. RL’s dismissal was based on charges of using abusive and offensive language on the company premises and assault.
Manager admits swearing
RL admitted during the disciplinary process that he had sworn at PV, although there was a dispute about how many times he had used the offending language.
He also admitted taking PV by the shoulder and physically turning her around. The parties disagreed over whether he had used one hand or both hands.
RL maintained that dismissal was too harsh and referred an unfair dismissal dispute to the National Bargaining Council for the Road Freight and Logistics Industry, which was later transferred to the Commission for Conciliation, Mediation and Arbitration (CCMA).
At the arbitration hearing, he challenged only the substantive fairness of his dismissal.
The arbitrator, Patric Stilwell, issued his award in September 2023 and found that the dismissal was fair.
Arbitrator found dismissal fair
The arbitrator found that dismissal fell within the range of fair sanctions for RL’s conduct.
Among the factors considered were that DSV’s disciplinary code prohibited swearing and assault, PV had also been dismissed for her role in the incident, and existing case law supported the proposition that such conduct could justify dismissal.
The arbitrator also found that RL’s conduct amounted to a violation of another person’s constitutional rights.
RL subsequently approached the Labour Court, seeking to review and set aside the arbitration award and substitute it with a decision in his favour.
RL argued that arbitrator overlooked key issues
RL raised several grounds of review.
Among other things, he argued that the arbitrator had failed to properly consider his written submissions and had not adequately considered that DSV bore the burden of proving that his dismissal was fair.
He also argued that there had been no evidence that the trust relationship between him and his employer had broken down, no evidence of a zero-tolerance policy applicable to the misconduct, and no evidence that DSV had consistently applied its disciplinary rules.
He further relied on provocation, arguing that his conduct occurred in the context of a heated confrontation with PV.
He maintained that he had sworn only once and had used only one hand when touching PV.
Court rejects provocation defence
The Labour Court rejected RL’s reliance on provocation.
The court found that it was common cause that RL had physically attempted to turn PV around when she was trying to walk away from their heated argument.
Whether he had used one hand or two was irrelevant, the court said.
“This is assault,” the judgment stated.
The court also found that the number of times RL had sworn was of little consequence.
As a manager, his use of the language in the circumstances was unacceptable, the court found.
RL had himself described the workplace as a high-volume and volatile environment, but the court was not persuaded that this justified his conduct.
The court found that his conduct was not defensive but aggressive in nature.
No need for employer to prove trust relationship had collapsed
The court also rejected RL’s argument that DSV had failed to prove that the trust relationship between the parties had broken down.
The judgment held that dismissal is an operational response to an untenable situation and that whether misconduct has damaged the trust relationship to the point that the employment relationship has become intolerable can sometimes be inferred from the facts.
Specific evidence of an irretrievable breakdown is not always necessary where the misconduct is of such a nature that an employer could reasonably be expected to lose trust in the employee.
In this case, the court found that RL’s conduct towards a female subordinate, in the presence of other employees, could not be tolerated.
Furthermore, RL had also argued that DSV had not produced evidence of a zero-tolerance policy relating to the misconduct.
The court rejected this argument, finding that there was no requirement for an employer to have a zero-tolerance policy before dismissal could be considered.
Each case must be assessed in its particular context, taking into account the circumstances and seriousness of the misconduct.
The court said that where the misconduct is serious, the employee holds a senior position and fails to appreciate the inappropriateness of his conduct, dismissal may constitute a reasonable operational response.
Court upholds arbitrator’s decision
The court held that the arbitrator’s reasoning, assessment of the facts and conclusions were supported by the evidence and fell well within the permissible range of reasonable decisions.
The court therefore concluded that there was no basis to interfere with the arbitration award.
The application was dismissed, with no order as to costs.
sinenhlanhla.masilela@iol.co.za
IOL News
Get your news on the go. Download the latest IOL App for Android and IOS now.
