It’s an unfortunate reality that in this day and age of massive unemployment, certain employees have scant regard for, or appreciation of, their otherwise secure employment. All too often, employees behave in a manner which defies all logic and comprehension. Such was the case of the case of the light blue hairclip and a fair dismissal.
Our story starts in a Pick n’ Pay franchise in Brackenfell, where Xolelwa Ntantiso was employed as a cashier. Xolelwa had an otherwise good relationship with her manager. She had none the less received a written warning for insolence earlier in the month in which Hairpingate occurred, although toward a different manager, and in different circumstances.
The employer had a policy governing the personal appearances of staff, one aspect of which was that hair accessories had to be navy blue or black. Let’s pause for a moment. One would think that it would not cross an employee’s mind that this was an unreasonable rule, nor indeed a rule worth repeatedly and defiantly refusing to comply with, thereby putting one’s job security in jeopardy. Well, that’s exactly what Xolelwa inexplicably did.
On the morning in question, her supervisor observed her wearing a light blue hairpin, and asked her to remove it. Xolelwa refused to do so “pointing to another staff member whose hairpin similarly did not comply with the policy”. The supervisor the instructed the other employee to remove her hairpin, which she did. Yet Xolelwa continued to refuse to remove her hairpin, after which an altercation ensued and she was disciplined and ultimately dismissed.
Xolelwa was of the view that her dismissal was unfair, and she lodged an unfair dismissal dispute at the CCMA.
The arbitrator acknowledged that Xolelwa’s failure to wear the correct colour hairpin, in and of itself, was only a breach of a minor rule governing the wearing of hair accessories. However, she had been dismissed for “serious, persistent and deliberate” insubordination. The arbitrator dismissed Xolelwa’s submission that she was in fact unaware of the policy, as on a previous occasion when she had worn the wrong colour hairclip, she had removed it without question. When originally instructed to remove her hairpin on this occasion, she had demanded an explanation from the supervisor why she should do so.
The supervisor’s instruction to remove the hair pin had been repeated several times, after which “an audible altercation arose between them in full view of customers and other staff”. This altercation caught the attention of the manager who called them both to his office. The manager then instructed Xolelwa to remove her hairpin; once again, she refused to do so, shouting at the manager, and alleging that the he was victimising her.
According to Xolelwa, she felt that she needed the hairpin in the same way that she needed her glasses. Unsurprisingly, the arbitrator concluded that simply wearing the correct colour hairpin would have resolved the problem.
The arbitrator further found that Xolelwa “must have realised that her defiant refusal to carry out the instruction even when it was issued a number of times, was putting her job at risk. She could easily have complied. It was not merely a failure to carry out a reasonable instruction but her deliberate and persistent challenge” to management’s authority to issue such an instruction, remembering that this took place in full view of customers and other staff members, intentionally undermining company discipline.
The arbitrator found Xolelwa’s expectation that she only be issued a final written warning “misconceived the seriousness of her insubordination”, and the employer could not be expected to tolerate such persistent and defiant defiance.
As such, the arbitrator held that her misconduct justified dismissal, noting that “The Applicant’s refusal to carry out a very simple instruction shows her defiant attitude to the authority of her manager, which she repeat when the store manager instructs her to remove the hairpin. This was preceded by her written warning for being insolent to a different manager that same month. The Applicant remained obstinate and argumentative at the disciplinary inquiry, and at arbitration never once conceding that she may have been in breach of the company’s uniform policy. To have been so recklessly insubordinate while on a written warning for insolence towards another manager, suggests an entrenched pattern of defiant behaviour towards management which, from the company’s point of view, makes continued employment intolerable”.
The Labour Court review application failed, and the dismissal was upheld.