A long-serving Woolworths supervisor who was dismissed for referring to cashiers as ‘dumb’ has won her job back after the Labour Appeal Court in Durban ruled the dismissal was excessively harsh for a single workplace remark, reports IoL.

The Labour Appeal Court ordered Woolworths to reinstate Gladys Arunachellam with retrospective effect to her dismissal date in May 2019, replacing her dismissal with a final written warning valid for 12 months.

Arunachellam, who had worked for the retailer for 28 years and held a supervisory position at the La Lucia Mall branch in Durban, was fired after allegedly describing till operators as ‘dumb’ during a conversation with trainees and another employee in March 2019.

Although Arunachellam denied using the word and maintained she had referred to staff as ‘confused’ rather than ‘dumb’, the court upheld earlier findings that she had in fact used the offending term.

The Labour Appeal Court found the CCMA commissioner who upheld the dismissal had failed to perform a crucial part of the fairness inquiry by not considering whether termination of employment was proportionate to the offence.

Acting Judge G N Moshoana with Judge Mahalelo and Judge van Niekerk concurring, said commissioners dealing with unfair dismissal disputes are legally obliged to determine not only whether misconduct occurred, but also whether dismissal is an appropriate punishment.

The court criticised the commissioner for stating in the arbitration award that he had not been asked to consider the appropriateness of dismissal.

The judgment described this as factually incorrect, noting that the severity of the sanction had been explicitly raised during arbitration proceedings and challenges to substantive fairness almost invariably include a challenge to dismissal as punishment.

The court found that the commissioner had effectively deferred to Woolworths' disciplinary decision without independently assessing its fairness, amounting to a reviewable irregularity.

Arunachellam's lengthy service and clean disciplinary record featured prominently in the court's reasoning.

While Woolworths had argued that the comments damaged workplace relationships and pointed to previous dismissals for derogatory remarks, the court found that the examples provided involved racially charged language and were not comparable.

According to IoL, the judges observed that the employees allegedly described as ‘dumb’ were not present when the remark was made and therefore did not hear it themselves.

‘It cannot be said that their feelings were hurt,’ the court said, adding that claims of offence by those who overheard the remark had been exaggerated. 

The judgment further found that Woolworths' own disciplinary code contemplated progressive discipline rather than dismissal for a first offence of this nature. 

The court concluded that a final written warning, rather than dismissal, was the appropriate response.

The supervisor was reinstated retrospectively to 6 May 2019. The order carries retrospective backpay from that date unless varied by agreement or a later court order.

Full IoL report

Judgment