An operations manager from Cape Town, who was dismissed after verbally abusing and physically grabbing a female subordinate during a tense workplace confrontation, failed in his attempt to overturn his dismissal.
Acting Judge U. Jacobs of the Cape Town Labour Court rejected RL's appeal against the arbitration ruling. The ruling had established that his termination by DSV Solutions (Pty) Ltd was substantively fair.
The court ruled that the arbitrator's decision fell within the range of decisions that a reasonable person could have made based on the evidence presented.
Workplace Conflict
RL was appointed as an operations manager at DSV Solutions in January 2021. The dispute arose in December 2022 between RL and one of his colleagues, PV. According to the court's decision, PV wanted to work overtime, but RL, as her supervisor, refused the request. PV disagreed with his decision, and the disagreement escalated into a heated argument.
During this confrontation, both employees used foul language. RL told PV 'stop fucking interrupting me,' and she also repeatedly used the same profanity. The situation intensified when PV turned to leave. RL approached her and placed his hand or hands on her shoulders, trying to turn her back.
Two employees witnessed the incident, and several others were nearby. Subsequently, both employees, RL and PV, underwent disciplinary hearings and were dismissed. RL's dismissal was based on allegations of using offensive and indecent language on company premises and assault.
Manager Admitted Use of Profanity
During the disciplinary process, RL admitted to using profane language towards PV, although there was a dispute over how many times he used abusive speech. He also admitted to grabbing PV by the shoulder and physically turning her. The parties disagreed on whether he used one or both hands.
RL argued that the dismissal was too harsh and referred the unfair dismissal dispute to the National Council for Road Transport and Logistics, which was subsequently transferred to the Commission for Conciliation, Mediation and Arbitration (CCMA). At the arbitration hearing, he only contested the substantive fairness of his dismissal.
Arbitrator Found Dismissal Fair
The arbitrator ruled that the dismissal was consistent with the range of fair sanctions for RL's conduct. Factors considered included DSV's prohibition on profanity and assault in the disciplinary code, the fact that PV was also dismissed for her role in the incident, and existing case law supporting the notion that such behavior could justify termination. The arbitrator also found that RL's conduct constituted a violation of another person's constitutional rights.
Subsequently, RL approached the Labour Court requesting a review and reversal of the arbitration decision and its replacement with a decision in his favour.
RL Argued Arbitrator Missed Key Points
RL put forward several grounds for review. Among others, he argued that the arbitrator did not properly consider his written submissions and failed to adequately take into account that the burden of proving the fairness of his dismissal lay with DSV. He also argued that there was no evidence of a breach of trust between him and the employer, no evidence of a zero-tolerance policy applicable to the misconduct, and no evidence that DSV consistently applied its disciplinary rules. Furthermore, he cited provocation, arguing that his behaviour occurred in the context of a tense confrontation with PV. He insisted that he used profanity only once and touched PV with only one hand.
Court Rejected Provocation Defence
The Labour Court dismissed RL's arguments regarding provocation. The court found it to be an accepted fact that RL physically attempted to turn PV when she tried to leave their heated argument. The court noted that whether he used one or two hands was immaterial. The ruling stated: 'This is assault.' The court also found that the number of times RL used profanity was insignificant. The court concluded that as a manager, his use of such language in those circumstances was unacceptable. Although RL described the workplace as a high-volume and volatile environment, the court was not convinced that this justified his behaviour. The court determined that his actions were not defensive but inherently aggressive.
Employer need not prove breakdown of trust
The court also rejected RL's argument that DSV failed to prove that the trust between the parties was breached. The ruling stated that dismissal can be an operational response to an unstable situation, and whether the misconduct damaged the trust to the extent that the employment relationship became intolerable can sometimes be inferred from the facts. In this case, the court found that RL's behaviour towards the female subordinate in the presence of other employees was unacceptable. Moreover, RL also argued that DSV did not provide evidence of a zero-tolerance policy regarding this misconduct. The court rejected this argument, ruling that there is no requirement for an employer to have a zero-tolerance policy before dismissal can be considered. The court stated that each case must be assessed in its specific context, taking into account the circumstances and severity of the misconduct. The court noted that if the misconduct is serious, the employee holds a senior position, and does not realize the inappropriateness of their behaviour, dismissal can represent a reasonable operational response.
Court upholds arbitrator's decision
The court held that the arbitrator's reasoning, factual assessment, and conclusions were supported by evidence and were within the acceptable range of reasonable decisions. Consequently, the court found there was no basis to interfere with the arbitration ruling. The application was dismissed without an order for costs.