In this context these words weren’t disrespectful or threatening
When a CCMA commissioner found that Andira Maharaj’s dismissal was substantively unfair, her employer took the award on review to the Labour Court.
Maharaj, the employer’s accountant, had been informed that her salary would be cut by 40% and that she would be placed on short time which meant that she would only be required to work three days a week.
Despite having placed her on short time Lorna Lloyd, the chief executive officer (CEO), sent Maharaj email enquiries on days that she was not supposed to work, as well as on a Sunday.
The discussion Maharaj had with the CEO consequently ended badly and she was instructed to face a disciplinary hearing.
She was dismissed after 13 years of service when found guilty at the hearing of having been grossly disrespectful to the CEO, and for allegedly having threatened her.
The employer’s evidence was based on eight statements that Maharaj had made during a conversation she had with the CEO after the reduction in her salary.
Although the CEO testified that Maharaj had accused her of “raping” the company, the Labour Court found that the alleged use of the word “raping” was regrettable, but said that the employee was simply stating a fact within the context that her salary, but not that of the CEO, was reduced.
In Jewellery Council of South Africa v Maharaj and Others the court summarised the evidence presented at the arbitration as follows: “The evidence presented at arbitration proceedings established that – the company was experiencing financial challenges, the employee was the only one affected by short-time and a 40% salary reduction, her position as an accountant was critical to the company, was demanding and required her to work more than the three days a week (as she continued to do), Lloyd did not take a salary cut, the company wasted over R2.5 million on a marketing campaign that had no benefit to it, Lloyd used to sit and drink wine the whole day when they attended the Jewellex conference, Lloyd once lost a banking dongle and the employee threatened to report her to the Board. Therefore, whatever was said during the altercation was largely factual and not untrue.”
The court found that it was not disrespectful of Maharaj to have accused the CEO of being weak because she had used the money for marketing purposes as this was no more than “a suggestion” that the CEO could have “resisted such a marketing campaign”.
The court further found that Maharaj was not disrespectful when she did not lower her voice while speaking to the CEO.
There was also no evidence that Maharaj had threatened the CEO: “… However, despite the employee’s frustration, which Lloyd was well aware of, the employee did not threaten Lloyd, alternatively, the “threats” to take Lloyd to the CCMA and the Courts do not constitute misconduct.”
Importance of this judgment: The court found that conduct must be seen in context. How words and phrases are used must be understood and evaluated in relation to the context. Simply put: Context is everything.
