What happens when an employee steadfastly refuses to remove a light blue hairpin in contravention of a dress code that requires hairpins to be navy blue or black?
She is charged with insubordination, and when found guilty, she is dismissed.
At first blush, the decision to dismiss the employee, who was employed as a cashier in a supermarket, seems harsh. However, when regard is had to all the facts, it becomes apparent why the CCMA upheld the dismissal, and the Labour Court dismissed the review application in the matter of Xolelwa Ntantiso v CCMA and Others Case no: C 527/2018 (13 November 2020) per Lagrange J.
Instead of removing the hairpin as she did when instructed to do so on a previous occasion, the employee argued with the supervisor.
She attempted to justify her conduct by saying that she needed the hairpin as much as her glasses, that she used it to scratch an itchy scalp, that she didn’t know the dress code policy, that other cashiers were previously in breach of the dress code without consequences, that other cashiers had told her to ignore the policy, and pointed out that another cashier was also wearing the wrong colour hairpin.
The other cashier immediately gave effect to the supervisor’s instruction to remove the offending hairpin.
As soon as the store manager became aware of the altercation, he called both the supervisor and the cashier to his office, where he repeated the instruction. The employee refused, saying that the supervisor was victimising her. She persisted with this version at the disciplinary hearing where she also said she “would still refuse to remove the hairpin in future if instructed to do so by the manager in question”.
The facts showed that the employee was dismissed because her conduct constituted a number of serious instances of misconduct:
- She repeatedly refused to give effect to a fair, valid and reasonable instruction;
- She deliberately and persistently continued to challenge the authority of her supervisor in full view of other staff and customers in the store;
- She refused to remove her hairpin when instructed by the store manager while they were in his office;
- She knew what the dress code policy was;
- In effect she simply did not like the rule governing the colour of hairpins in terms of the dress code policy;
- She intentionally undermined company discipline;
- She already had a written warning for previous insolence towards another manager;
- The employer could not be expected to tolerate her serious and ongoing defiance of the authority of both her supervisor and the store manager.
In the end it wasn’t about the wrong colour hairpin, but rather what happened after she was told to remove it. It was at this point that she dug her heels in and refused.
Given that she already had a written warning she apparently thought she would only be given a final written warning – but she misconstrued the seriousness of her misconduct by continuing with such a degree of insubordination.
It is no wonder that the court agreed with the findings of the CCMA arbitrator:
- “It was plainly the seriousness of her defiance and the fact that she remained convinced that she was entitled to behave the way she did that persuaded the arbitrator that dismissal was an appropriate sanction.”
The importance of this judgment is that even if an employee doesn’t think that it is particularly serious to refuse to obey a fair, valid and reasonable instruction after having committed what might appear to have been a small infraction, there is no reason why the employer should tolerate such insubordination. Ongoing or repeated insubordination would make continued employment untenable. The employer therefore had every right to terminate the employment contract.