Labour Court upholds dismissal of Cape Town manager who swore at and grabbed subordinate

The Labour Court in Cape Town has upheld the dismissal of an operations manager who swore at and physically turned a female subordinate during a workplace dispute. Acting Judge W Jacobs dismissed RL’s review application against an arbitration award that found his dismissal by DSV Solutions (Pty) Ltd to be substantively fair.

What happened

RL had been appointed as an operations manager by DSV Solutions in January 2021. The dispute arose from an incident in December 2022 involving RL and a colleague identified as PV. The disagreement began when PV wanted to work overtime and RL, as her manager, refused her request.

According to the judgment, the refusal escalated into a heated argument in which both employees used profanities. RL told PV,

“stop fucking interrupting me”

and PV repeatedly used the same expletive. When PV turned to leave, RL approached her and placed his hand or hands on her shoulders to turn her around. Two employees witnessed the incident and several others were in the immediate vicinity.

Disciplinary and arbitration process

Both RL and PV were subjected to disciplinary hearings and both were dismissed. RL’s dismissal was on charges of using abusive and offensive language on company premises and assault. RL admitted during the disciplinary process that he had sworn at PV and that he had taken PV by the shoulder and physically turned her around, although he disputed the number of times he swore and whether he used one hand or both.

RL referred an unfair dismissal dispute to the National Bargaining Council for the Road Freight and Logistics Industry; the dispute was later transferred to the Commission for Conciliation, Mediation and Arbitration (CCMA). At arbitration, RL challenged only the substantive fairness of his dismissal. The arbitrator, Patric Stilwell, issued an award in September 2023 finding the dismissal fair.

Court reasoning and rejected defences

RL asked the Labour Court to review and set aside the arbitration award. He argued that the arbitrator had not properly considered his written submissions, that his employer bore the burden of proving the fairness of the dismissal, and that there was no evidence the trust relationship had broken down. He also relied on provocation, saying the conduct occurred during a heated confrontation, and disputed factual points about how many times he swore and how he touched PV.

The Labour Court rejected those arguments. The court said it was common cause that RL had physically attempted to turn PV around as she tried to walk away and that whether he used one or two hands was irrelevant. The court characterised that behaviour as assault, quoting the judgment:

“This is assault,”

and found the number of times he swore to be of little consequence.

The judgment held that as a manager RL’s language in the circumstances was unacceptable. The court was not persuaded that the workplace environment justified his conduct and described his behaviour as aggressive rather than defensive.

On trust and policy arguments

The court also rejected RL’s contention that DSV had not shown the trust relationship had irretrievably broken down. It said that in some cases the nature of the misconduct allows an employer reasonably to infer a collapse of trust without specific evidence. The court further found there was no requirement for an employer to have a zero-tolerance policy before considering dismissal; each case must be assessed on its facts and the seriousness of the misconduct.

Final decision

The court found that the arbitrator’s reasoning, assessment of the facts and conclusions were supported by the evidence and fell within the permissible range of reasonable decisions. It therefore dismissed RL’s application and declined to interfere with the arbitration award. The judgment ordered no costs.