By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
Disrespect and the making of false allegations against management can, in certain circumstances, merit dismissal. This is because employees are required to respect their superiors and to refrain from insulting them.
However, before firing an employee for such offences the employer is required to take the context and circumstances of the employee’s conduct into account. For example, if a manager provokes an employee into swearing at him/her, making accusations or insulting him/her such provocation must be taken fully into account as a mitigating factor.
While the mitigating factors would not excuse the employee’s behaviour they would have the effect of reducing the seriousness of the offence. This could mean that dismissal might, in the specific circumstances, be too harsh. However, if there are also strong aggravating circumstances these might outweigh the mitigating circumstances and so justify dismissal. For example, if an employee tells his manager to f@*k off because the manager has told the employee that he is being silly, the aggravation of the employee’s swearing would outweigh the manager’s mild insult.
In the case of Bakhresa SA (Pty) Ltd vs Roshelle Jaipal (Lex Info 24 March 2026. Labour Appeal Court case no: DA09/2025) the employee was fired for emailing false allegations that the employer had committed fraud and for stating in a whatsapp message that the management didn’t “have the balls” to deal with aggrieved staff.
The CCMA arbitrator found that these actions did not merit dismissal due to the surrounding circumstances. That is, As regards the first charge, the employee had merely sent an email pointing out factual discrepancies in the notice of motion which raised questions around its veracity. This would not amount to allegations of fraud. As regards the second charge, the employee had said the word “balls” while frustrated and had merely meant that management had been too scared to deal directly with the staff. Furthermore, on receipt of this message, management had taken no exception to it. Ms Jaipal had also said, in the same message, that ‘we are not enemies we are here to work’, which softened her use of the word ‘balls’. The employer was ordered to reinstate the employee retrospectively.
Here the employer fought the case at the CCMA, Labour Court and Labour Appeal Court. This would have fruitlessly cost it a great deal of time, effort and money. Hence employers need to ensure that their decision makers are properly trained in the law relating to appropriate formulation of charges and in the need to look fully and objectively at the circumstances surrounding unwanted conduct of employees.
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