Labour Appeal Court orders Woolworths supervisor reinstated after ‘dumb’ remark

The Labour Appeal Court has ordered the reinstatement of a long-serving Woolworths supervisor after finding her 2019 dismissal was too harsh for a single insulting remark.

Who was involved and what happened

Gladys Arunachellam, who worked for Woolworths for 28 years and was a supervisor at the La Lucia Mall branch in Durban, was dismissed after she was said to have called till operators “dumb” during a conversation with trainees and another employee in March 2019.

Arunachellam denied using the word “dumb” and said she had referred to staff as “confused.” The court, however, upheld earlier findings that she had used the offending term.

Court’s findings on fairness and sanction

The Labour Appeal Court, sitting in Durban, found the key issue was not whether misconduct occurred but whether dismissal was a proportionate sanction. Acting Judge G N Moshoana, with judges Maletsatsi Mahalelo and van Niekerk JA concurring, said commissioners must determine both legs of substantive fairness: whether the employee committed misconduct and “whether dismissal was an appropriate sanction for it.”

The court criticised the Commission for Conciliation, Mediation and Arbitration (CCMA) commissioner for failing to independently assess the appropriateness of dismissal and said he had effectively deferred to Woolworths’ disciplinary decision, creating a reviewable irregularity.

Service record, comparability and disciplinary code

Judges emphasised Arunachellam’s lengthy service and clean disciplinary record, noting she had worked for the retailer for nearly three decades without incident. The court rejected Woolworths’ comparisons with cases involving racist or racially charged language, finding those examples not comparable.

The judgment also observed that the employees allegedly called “dumb” were not present when the remark was made and therefore did not hear it themselves, saying:

“It cannot be said that their feelings were hurt,”

and that claims of offence by those who overheard the remark had been exaggerated.

The court noted Woolworths’ own disciplinary code contemplated progressive discipline and that labour law generally favours corrective and progressive discipline, especially for employees with long service and clean records.

Order and remedy

The Labour Appeal Court ordered Woolworths to reinstate Arunachellam retrospectively to 6 May 2019 and to replace her dismissal with a final written warning valid for 12 months. The judgment stated:

“The appropriate sanction to have been imposed for the offence of using the word ‘dumb’ is that of issuing the appellant with a final written warning valid for twelve months,”

The order carries retrospective backpay from 6 May 2019 unless varied by agreement or a later court order.

Procedural fairness and prior rulings

The Labour Appeal Court overturned an earlier finding by the Labour Court that had awarded Arunachellam three months’ compensation on the basis that her dismissal was procedurally unfair. The Appeal Court ruled the disciplinary process had been procedurally fair but that the dismissal was substantively unfair because the punishment did not fit the misconduct.

End of report.