- Woolworths ordered to reinstate supervisor dismissed in 2019.
- Appeal judges replace dismissal with a final written warning.
- Judgment reinforces the commissioner's duty to decide if dismissal is an appropriate sanction.
Gladys Arunachellam has been reinstated almost seven years after Woolworths (Pty) Ltd dismissed her for referring to fellow employees as dumb. The Labour Appeal Court found that the punishment did not fit the misconduct.
The judgment was written by Acting Judge GN Moshoana, with Acting Deputy Judge Presudent M Mahalelo and Acting Judge A van Niekerk concurring.
Dismissal stemmed from workplace comment
Arunachellam was employed as a supervisor at Woolworths La Lucia Mall store in Durban and had completed 28 years of service when she was dismissed on 6 May 2019.
Woolworths charged her with gross misconduct, alleging that on 11 March 2019, she called till operators dumb while talking to two trainees and another employee. The retailer said the comment went against its workplace values and harmed workplace relationships.
According to the evidence, Arunachellam was discussing the performance of till operators with two trainees and another employee when she allegedly described the cashiers as "dumb". She maintained that she had actually used the word "confused", explaining that the employees were inexperienced and insufficiently trained.
The till operators were not present during the conversation, and the incident was only raised with her about two weeks later when management questioned her about the alleged remark.
Although Arunachellam always said she used the word confused instead of dumb, Commissioner Ian Bulose accepted Woolworths version and found that she had made the derogatory remark.
Commissioner Bulose upheld the dismissal, saying in his arbitration award that he had not been asked to decide if the sanction was appropriate and so found no reason to interfere with Woolworths decision.
Arunachellam challenged the arbitration award in the Labour Court, arguing that Commissioner Bulose had not properly considered whether her dismissal was fair. The Labour Court found that the dismissal was substantively fair but procedurally unfair and awarded her compensation. Unhappy with the result, she appealed, while Woolworths challenged the finding on procedural fairness.
Commissioner failed to perform statutory duty
Writing for the Labour Appeal Court, Judge Moshoana said Commissioner Bulose misunderstood his duty by not deciding whether dismissal was an appropriate sanction.
The judge explained that when an employee challenges a dismissal, a commissioner must decide not just whether the employee was guilty of misconduct, but also if dismissal is a fair punishment. Failure to do so goes against the Labour Relations Act, Judge Moshoana said.
He added that the commissioner mistakenly thought Arunachellam had not challenged the sanction by Woolworths, when she had actually questioned whether the dismissal was fair. This mistake affected the arbitration outcome.
The judgment also criticised the commissioner for saying he had not been asked to decide if dismissal was appropriate, pointing out he was required by law to make that decision.
Long service counted heavily
The Labour Appeal Court accepted that Arunachellam did use the word dumb, finding that Commissioner Bulose reasonably accepted Woolworths version instead of her claim that she said confused. However, Judge Moshoana said that the finding did not automatically justify dismissal.
The judgment highlighted Arunachellam's 28 years of clean service, the lack of previous disciplinary issues, and that there was no evidence the remark was racially motivated.
The judges also noted that the employees she spoke about were not present when she commented. Importantly, Woolworths own disciplinary code calls for progressive discipline for this type of misconduct, not dismissal for a first offence.
“A fair result in this case would be a final written warning, not the extremely harsh sanction of dismissal,” Judge Moshoana said, adding that where dismissal is unfair, it will always be substantively unfair.
Labour Court judgment overturned
The Labour Appeal Court found that the Labour Court should have set aside the arbitration award because Commissioner Bulose did not decide if dismissal was appropriate.
The appeal judges also agreed with Woolworths that the disciplinary process was fair and set aside the Labour Court's compensation award.
Instead of sending the case back to the CCMA, the judges decided the dispute themselves, noting that almost six years had passed since Arunachellam lost her job.
Woolworths ordered to reinstate supervisor
The Labour Appeal Court ordered Woolworths to reinstate Arunachellam with retrospective effect from 6 May 2019.
Instead of dismissal, Woolworths must give her a final written warning valid for 12 months for using inappropriate language at work. The court made no order as to costs.
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