Reinstate employee who challenged 'no high heels' rule at work, court orders

The labour court has ordered that a woman dismissed five years ago after expressing dissatisfaction about the “no high heels” policy at her workplace be reinstated.

The court described the case as one that “pits sartorial elegance against health and safety at the workplace”.

In 2015, Tharisa Minerals, whose core asset is Tharisa Mine, 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 whereon the premises of Tharisa high heels and open shoes are not allowed.

As a result, on September 21 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.

“Employees are thus hereby instructed to wear only flat shoes when entering the mine premises and safety boots to be worn where applicable”.

The mine said non-compliance with instruction may lead to disciplinary action.

Litshani Mofokeng, who worked at the company as a human resources co-ordinator from September 2013, was observed on September 11 2017 wearing high heels.

A director highlighted the dangers of wearing high heels to one manager. It is unclear whether these dangers were communicated to Mofokeng.

Mofokeng was spotted wearing high heels again on September 21 2017, and Derek Baker, head of sustainable development, summoned her to his office and instructed her to comply with the policy.

Mofokeng attempted to plead her case for wearing high heels.

Baker informed her of the outcome of the risk assessment.

Mofokeng complied with the policy but was clearly not happy and vented her dissatisfaction to some of her female colleagues. She approached one and requested they come together as female colleagues to voice their dissatisfaction.

She also approached the trade union, which refused to come to her aid.

Baker got wind of the fact that Mofokeng had expressed dissatisfaction about the policy.

He interviewed employees and decided to charge Mofokeng with gross insubordination, because he viewed her actions as challenging his authority since the memorandum was issued by the operations manager at his request.

Mofokeng was also charged with incitement for lobbying other employees to challenge the memorandum.

Mofokeng was found guilty of gross insubordination and incitement and was dismissed on October 16 2017.

She referred a dispute to the bargaining council, alleging unfair dismissal and the arbitrator found the dismissal fair.

Mofokeng 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 passed in June, 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.

Moshoana said Mofokeng was clearly not happy with the policy but that did not amount to being disobedient or challenging authority.

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