SACWU obo Masilo / Bic SA (Pty) Ltd  12 BALR 1134 (MEIBC)
Division: Metal and Engineering Industries Bargaining Council
Case No: MEGA11871
Before: J Mphaphuli, Panellist
Application in terms of section 191(5)(a)(i) of the LRA
Dismissal: Substantive fairness Insubordination Employee exposing breasts to supervisor during routine body search Dismissal fair.
The applicant was dismissed after exposing her breasts to a supervisor during a routine body search. The applicant claimed that the supervisor had touched her shoulders, which, according to traditional belief, would upset the spirits of her ancestors.
The commissioner noted that employers are entitled to set reasonable standards of conduct for their employees. The applicant’s explanation for her conduct did not explain why she had exposed her breasts. Had she been genuinely concerned about a body search, she could have requested to be scanned by a metal detector. In the event, she had chosen to act in a rebellious and grossly disrespectful manner, for which she deserved to be dismissed.
The application was dismissed.
- Details of hearing and representation
This is an award following an arbitration hearing conducted in terms of section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the Act/LRA”) as amended. The arbitration hearing was scheduled in terms of section 191 of the LRA, as amended.
The proceedings were conducted at the Centre for Dispute Resolution in Johannesburg on 6 September 2007. Present was Mrs De Beer, a official of an employer organisation and she appeared on behalf of the respondent.
Mr Nxuba, a union official, appeared on behalf of the applicant.
Issue to be decided
Whether the dismissal was effected for a fair reason as contemplated in terms of section 188 and Schedule 8 of the Act, if not, what remedy was appropriate.
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Summary of evidence
The respondent conducted its business in the manufacture of stationery. The respondent’s premises were located in Industria. The applicant was appointed in 1996. The applicant served in the capacity of a picker. The applicant was remunerated at R 3 268 per month. Dismissal was effected on 15 March 2006.
Only the substantive fairness of the dismissal was contested. The applicant party sought reinstatement in the event of a successful application.
Mr Mhlongo, a warehouse supervisor, testified on behalf of the respondent. He was a witness to the applicant’s behaviour on 7 February 2006. The applicant had earlier, on the previous day, refused to be body searched. Body searches were a regular occurrence in the workplace. As a sign of protest, the applicant had exposed her private parts, namely, breasts. He found this embarrassing as well as indecent and was humiliated by the experience.
The applicant had subjected herself to body searches in the past, despite the fact that she was an employee representative and a traditional healer in learning or an initiate.
Mrs Munyai, a dispatch supervisor, also tendered testimony in the respondent’s case. All employees in the company were required to submit to body searches. Alternatively, employees were at liberty to submit to searches by a metal detector.
She was like the applicant, an initiate in traditional healing. To the best of her knowledge, an initiate was not exempted from being searched and tradition made no provision to that effect. She found the applicant’s behaviour to be in bad taste, shameful and indecent.
The applicant also testified in her case. She had been in the service of the respondent for ten years. She had never refused to be body searched. She had been an initiate since the year 2004. She only objected to being body searched to the extent of being touched on her shoulders.
Her particular internship does not allow her to be touched on her shoulder as this upsets her ancestors. She recalled an incident whereby her supervisor touched her on her shoulders as a result of which she collapsed.
She was not happy with the penalty meted to her. She had an unblemished disciplinary record at the time of her dismissal. It was her view that the dismissal penalty was severe and out of context with the misconduct complained of. In her view, any disciplinary action short of dismissal, eg a final written warning, would have sufficed.
Mrs Nebulane, a traditional healer, gave evidence on behalf of the applicant. She confirmed the applicant’s testimony that initiates were not supposed to be touched on their shoulders. The initiate’s shoulders were considered a haven for ancestors. Touching an initiate’s shoulders upset the ancestors and may have very harmful consequences for an initiate.
Summary of argument
The respondent’s case was that the dismissal penalty was appropriate taking the gravity of the misconduct into account. The applicant’s conduct not only
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undermined management’s duty to manage but also caused disorder in the workplace. In the event, a normal working relationship was no longer tenable.
The applicant party contended that the dismissal penalty was too severe and served to punish rather than rehabilitate. In its view, disciplinary action short of a dismissal would have been adequate.
Analysis of evidence and argument
Employers are, by virtue of their office, authorised to put standards, rules and regulations in place in order to manage the workplace. A workplace without rules would become unmanageable as the conduct of employees would not be controllable in the absence of a governing standard.
Where the rules or standards are reasonable and fair, third party interference would be unwarranted in the event that an employer has taken measures to address breaches of the rules or standard.
Employers are entitled to take measures to protect their assets and this may include the employment of security agents. Security agents may, in the fulfilment of their duties, patrol the premises of the employer, screen all personnel entering and exiting the employer’s premises or even conduct body searches.
Where body searches are conducted privately and decently, there would be no reason why anybody should complain that the searches constitute an invasion of privacy and are, therefore, unlawful.
In the matter under consideration, the applicant’s grief was that the security officer attempted to touch her on her shoulders, which she found to be inappropriate. There was no evidence as to why she indecently exposed herself. The only argument presented was that she showed remorse for her action by offering an apology afterwards.
It is my determination that the applicant had no genuine excuse for not submitting herself to a complete body search. Had she been honest in her claim of ancestral sanctity, she would have brought this to the attention of management or alternatively submitted to a body search by metal detector.
I reject the applicant’s argument about the existence of preferential treatment in the company. The allegation that only one particular race group was allowed to submit to metal detectors was a sideshow. Had it not been the case, this would have been put to the respondent’s witnesses. Better still, the union would not have stood idle while this practice persisted in an era where such practice is outlawed and the law provides protection to anyone discriminated in this manner.
It is my conclusion that the applicant was less candid and disingenuous and that her version lacked credibility. The offences, individual or collectively, were of a serious nature and carries a dismissal penalty. The applicant acted in a manner that was both rebellious and grossly disrespectful. In the event, the respondent could not be expected to reconcile with her actions and forge ahead with the employment relationship. Dismissal was at the behest of the applicant and her case for an unfair dismissal had no substance.
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- The dismissal was not unfair.
- I dismiss the application for an unfair dismissal.
- I make no cost order.
No cases were referred to in the above award.