Labour: Employee who defied 'no high heels' rule wins case

The Labour Court (Johannesburg) has ordered that Litshani Mofokeng – dismissed five years ago after expressing dissatisfaction about the ‘no high heels’ policy at her workplace – be reinstated. According to a TimesLIVE report, the court described the case as one that ‘pits sartorial elegance against health and safety at the workplace’. In 2015, Tharisa Minerals adopted a policy and procedure covering issues of health and safety at the mine and one of the clauses was that ‘appropriate shoes must be worn at all times. Slippers, high heels, and open shoes are not allowed.’ However, this policy was ambiguous as it did not clearly mention where on the premises of Tharisa high heels and open shoes are not allowed. As a result, in September 2017, the policy was reviewed to introduce the following note: ‘Only flat shoes may be worn at work on Tharisa premises. No sleepwear is allowed’. This was after a risk assessment concluded that high heel shoes posed a safety risk. Mofokeng was observed on two occasions wearing high heels and was instructed to comply with the policy. She complied with the policy but vented her dissatisfaction to some of her female colleagues. She was subsequently found guilty of gross insubordination and incitement and was dismissed in October 2017.

Mofokeng referred the dispute to the Bargaining Council, alleging unfair dismissal and the arbitrator found the dismissal fair. The TimesLIVE report says she then approached the Labour Court, which ruled that the dismissal of Mofokeng was procedurally fair but substantively unfair. It ordered her reinstatement. In the judgment, the court said on the facts of the case, there was no indication of a deliberate and serious challenge to or defiance to the policy by Mofokeng. ‘Had Mofokeng garnered the necessary support, a demand might have been made to either amend the policy further or to reconsider the policy. Accordingly, on the facts of this case, there is no scintilla of evidence to demonstrate challenge of authority,’ Judge Graham Moshoana said.