The Motor Industry is a very robust environment and, contrary to popular belief, swearing and vulgar language is not an unknown phenomenon, not limited to workshops and by no means exempted by default. We look at some recent cases.

In the past three months, MISA received two requests for assistance after our members were dismissed for using vulgar language. In another case, we assisted at a disciplinary hearing. All three cases relate to what we will refer to as “p-bomb” that was directed towards managers and colleagues.

Labour Court rulings

We share two cases that went before the Labour Court.

Case #1: Lackay was wrong, but lucky

In the first, Lackay (63) was informed that Jansen, a Supervisor, complained about him as he was keeping his colleagues out of work. Lackay retaliated by using vulgar language towards Jansen.

This outburst landed Lackay in trouble and he was dismissed for “using abusive language”.

He then referred an unfair dismissal dispute to the Statutory Council, where his dismissal was overturned. In Lithotech Manufacturing Cape - A Division of Bidpaper Plus (Pty) Ltd v Statutory Council, Printing, Newspaper & Packaging Industries & others (2010) 31 ILJ 1425 (LC), the Labour Court upheld the Commissioner’s decision. Lackay was reinstated with a Final Written Warning.

The rationale
The saving grace in the above is that the Court, in numerous other matters, including this one held that while swearing at an employee and/or manager can never be condoned, it is still necessary for the Arbitrator to carefully analyse the circumstances in which the swearing took place. Only then can a decision be made whether the swearing rendered the employment relationship intolerable to such an extent that continued employment was no longer possible.

The Commissioner found the words used by Lackey was not directed at his Supervisor, Arthur Jansen (Jansen), but “had more to do with the situation that the applicant believed he was in”. In this specific scenario Jansen conceded that it was the norm in the factory to swear and that he as Supervisor was no different.

Furthermore, the totality of the circumstances considered includes the length of service of the respondent. In this case, Lackay had more than 19 years of service and was on the brink of retirement. Another mitigating factor was that employees used swear words liberally on the shop floor and the fact that even his superior admitted to using swear words.

Case #2: Follow the rules

There was a rule in place at the dealership that regulated the process that had to be followed when salary queries were made. An employee, who had been dismissed, approached the financial manager as he was on his way to a statutory audit and, understandably, under pressure. When the employee requested 24 months of clock cards from the manager, he lost his temper and used inappropriate language, which he later admitted to. The employee lodged a case of constructive dismissal, but the court overturned the Arbitrator’s finding that the employee was constructively dismissed, and the manager was off the hook, as this was found to be an isolated case.

The rationale
The employee could reasonably have lodged a grievance regarding the cause of her unhappiness but failed to do so. The swearing or perceived abusive language was an isolated incident which did not give rise to an intolerable relationship.

No blanket exemption
The best advice is to always watch your language.

Remember that when you are faced with less than ideal situations at work to phone us before you lash out in an unguarded moment. Let us be your voice! MISA is always just a phone call away.

Article by Tiekie Mocke, Manager: Legal Department, MISA.

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