Johannesburg - A mining company must reinstate its former human resources co-ordinator after it fired her for defiantly wearing high heels at its offices, despite the firm demanding that only flat shoes be worn at the mine.
Tharisa Minerals has been ordered by Labour Court Judge Graham Moshoana to give Litshani Mofokeng her job back, after she was dismissed in 2017 for objecting to the company’s decision to ban high heels from its mine in Rustenburg, North West.
Mofokeng was first spotted wearing high heels in September, 2017 by one of Tharisa Minerals’s directors, who then informed a manager about the dangers of wearing such shoes.
On the second occasion, 10 days later, Tharisa Minerals’s head of sustainable development Derek Baker summoned Mofokeng to his office and instructed her to comply with the policy on the spot.
In her response, Mofokeng tried to plead her case that she desired to retain her feminine look at the mine, but Baker informed her of the risk assessment that company had done and shared his experiences at a previous mine he worked in.
Mofokeng grudgingly complied with the instruction.
Mofokeng was unhappy with the instruction because she had previously worn high heels without any troubles, and expressed her dissatisfaction with some of her female colleagues, some of whom advised her to wait for the instruction to be in writing.
Although some of Mofokeng’s female colleagues backed her, they later got cold feet.
She also approached a trade union leader to support the cause, but her attempts were rebuffed.
It was then that Baker got wind of Mofokeng’s efforts to challenge the instruction and charged her with gross insubordination and incitement, claiming that her actions amounted to challenging his authority.
Mofokeng was found guilty at a disciplinary hearing and dismissed in October, 2017 but challenged the decision at the CCMA (Commission for Conciliation, Mediation and Arbitration), which found that her axing was fair.
She then approached the Labour Court seeking to overturn the CCMA ruling, on the grounds that its decision was not one that a reasonable decision-maker would have reached.
Judge Graham Moshoana found there seemed to have been no justification for why high heels were not allowed and at which premises on the mine, and said her dismissal sounded, on the face of it, invalid and unreasonable.
In his ruling, Judge Moshoana made reference to Ukraine’s Defence Minister Andriy Taran facing sharp criticism after announcing that female soldiers would be required to wear high heels during parades last year.
Taran’s call was widely dismissed as sexist, and harmful to female soldiers’ health.
”The conclusion to reach is that a finding that Mofokeng is guilty of gross insubordination is not one that a reasonable decision-maker might reach. Unilateral change of dress code practice is tantamount to provocation,” Judge Moshoana found.
On the finding that Mofokeng was guilty of incitement, the judge said incitement was a criminal law offence, and that she did not incite her female colleagues to commit any crime.
“To the extent that it may be said that Mofokeng incited other co-employees to engage in strike action, (a) to strike is a constitutionally guaranteed fundamental right of an employee and can only be protected or unprotected and never illegal or unlawful,” reads Judge Moshoana’s ruling handed down last Monday.
The judge reviewed and set aside the CCMA’s decision that Mofokeng’s dismissal was fair.
Judge Moshoana replaced it with one stating that while it was procedurally fair, it was also substantively unfair and ordered that Mofokeng be reinstated from the day she was fired.
On the issue of back pay, the court said once an employee is reinstated the contractual right to back pay accrues to the employee.