The Commissioner Who Forgot the Second Question

Imagine an employee who has devoted 28 years of loyal service to one employer. She has an exemplary disciplinary record, has worked with thousands of customers, supervised staff for decades, and has never before found herself in serious disciplinary trouble.

Then, one day, a single word changes everything.

Gladys Arunachellam was a supervisor at Woolworths. During a discussion with a few employees about the competence of some cashiers, it was alleged that she referred to them as “dumb.”

Gladys denied using that word. She maintained that she had actually used the word “confused,” explaining that the employees simply lacked sufficient training. The conversation had taken place two weeks before she was questioned about it, and she testified that she honestly could not remember the precise wording she had used.

Nevertheless, several witnesses insisted that the word “dumb” had been used.
At her disciplinary hearing Woolworths accepted that the word was insulting and dismissed her for misconduct.
Gladys challenged her dismissal at the CCMA.

The Commissioner makes a crucial mistake
The commissioner carefully analysed the evidence and eventually accepted the employer’s version that Gladys had indeed used the word “dumb.”

Up to this point, there was nothing remarkable.
However, after finding that she had used the word, the commissioner effectively stopped the enquiry.

He wrote:
“I have not been asked to determine the appropriateness of the sanction.”
He therefore simply accepted Woolworths’ decision to dismiss her.
That single sentence became the centrepiece of the entire appeal.

The Labour Appeal Court asks an obvious question
The Labour Appeal Court asked:
How can a commissioner determine whether a dismissal is fair without deciding whether dismissal itself was the appropriate punishment?

That is precisely what commissioners are appointed to decide.
Finding an employee guilty of misconduct is only half of the enquiry.
The second half is asking:

Does this misconduct justify dismissal?
The Court emphasised that every commissioner has a statutory duty under the Labour Relations Act and the Code of Good Practice to answer both questions.

No employee needs to ask separately for the sanction to be considered.
Once substantive fairness is challenged, the commissioner must determine whether dismissal was an appropriate sanction.

The Commissioner misunderstood his role
The Court found that the commissioner mistakenly believed that because Gladys disputed using the word at all, she was not challenging the sanction.
That was legally incorrect.

Every employee who alleges that a dismissal is unfair is ordinarily challenging both:

• whether they committed the misconduct; and
• whether dismissal was a fair response.

The commissioner therefore failed to perform one of his most important statutory duties. This amounted to a reviewable irregularity.

The Labour Court makes matters worse
When the matter reached the Labour Court, things became even more problematic.
Instead of recognising that the commissioner had never decided whether dismissal was appropriate, the Labour Court incorrectly assumed that he had.

The Labour Court then concluded that dismissal was an appropriate sanction.
The Labour Appeal Court held that this finding was plainly wrong because the commissioner had expressly stated that he had not considered the sanction.
The Labour Court effectively attributed reasoning to the commissioner that simply did not exist.

Should the matter go back to the CCMA?
Normally, where a commissioner fails to decide an important issue, the matter is sent back for a fresh arbitration.
But there was a practical problem.
By this stage almost six years had passed since Gladys had been dismissed.

The Court held that sending the matter back would simply prolong litigation unnecessarily. Since all the evidence was already before the Court, it decided to determine the appropriate sanction itself.

Looking at the whole picture
The Court then asked the question the commissioner should have asked from the beginning. Was dismissal really justified?

The Court considered several important factors:

• Gladys had 28 years of unblemished service.
• There was no history of similar misconduct.
•  The comment had no racial undertones.
• The employees allegedly referred to were not even present when the remark was made.
• The employer’s own disciplinary code envisaged progressive discipline for this type of misconduct.
• There was no evidence that the employment relationship had become intolerable.

Although the Court accepted that calling employees “dumb” was inappropriate and deserving of discipline, it concluded that dismissal was grossly disproportionate.

Progressive discipline matters
The Court emphasised an important principle of labour law.
Dismissal is generally the last resort.

Unless the misconduct destroys the employment relationship or is exceptionally serious, employers should first consider corrective discipline.

The Court observed that Woolworths’ own disciplinary code anticipated progressive discipline for this offence.
There was therefore no justification for bypassing lesser sanctions.

The final outcome
The Labour Appeal Court found:

• Gladys was guilty of using inappropriate language.
• The misconduct justified discipline.
• But dismissal was unfair.

The appropriate sanction should have been a final written warning valid for twelve months. Accordingly, the Court:

• reviewed and set aside the arbitration award;
• declared the dismissal substantively unfair;
• ordered Woolworths to reinstate Gladys retrospectively to the date of her dismissal; and
• substituted dismissal with a final written warning.

The important legal lesson
This judgment sends a powerful reminder to commissioners and chairpersons alike. A disciplinary enquiry does not end once guilt has been established.

There are always two separate questions:

1. Did the employee commit the misconduct?
2. Does that misconduct justify dismissal?

A commissioner who answers only the first question has not completed the enquiry required by the Labour Relations Act.
As the Labour Appeal Court made clear, determining the appropriateness of the sanction is not optional—it is a statutory obligation. A failure to perform that duty constitutes a reviewable irregularity because it distorts the entire outcome of the arbitration.