THE VIEWS FROM THE SOUTH AFRICAN LABOUR COURTS
The trust between an employer and an employee has always been regarded as of paramount importance for the relationship to work (well). Hence, even if an employee who was deemed dishonest rendered a long service and if the value of goods, intellectual property or similar involved was small, the premise in general has always been that dismissal would be justified due to the harm done to the trust relationship.
The Labour Court and Labour Appeal Court have confirmed the above-mentioned tendency. In the matter Miyambo v CCMA and others (2010) 10 ILJ 1017 (LAC), the employee was dismissed for taking scrap metal for himself, knowing that it would normally be sold by his employer. The CCMA Commissioner found that whilst he was in fact guilty of theft, dismissal was too harsh a sanction to impose and ordered reinstatement, although without back pay. The matter was taken on review and the Labour Court reversed the decision. On further appeal, the Labour Appeal Court confirmed that dismissal was appropriate under the relevant circumstances, although the employee had a 25 years service record and a clean disciplinary record: by his actions, the employee had destroyed the trust relationship.
In the case: DeBeers Consolidated Mines Limited v CCMA and others (2010) 9 BLLR 995 (LAC), the following statement was made, which may be handy for disciplinary chairpersons to keep in mind when dealing with dishonesty cases:
“Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. The dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”
In another case, Woolworths (Pty) Ltd v CCMA and others (unreported JA 30/10 26 May 2011), evidence obtained from concealed cameras on the employer’s premises showed that the employee had on two separate occasions concealed clothing items on her body, appropriating the same without paying for it. She was dismissed and the CCMA found that, as the employer had not proven that the employee had any dishonest intent, she should be reinstated. Not surprisingly this was taken on review: this employee also had a clean service record and 23 years past service. The Labour Court agreed with the CCMA that the dismissal was too harsh. The Labour Appeal Court on a subsequent further appeal, did not agree, once again confirming that although the value of the goods was small and notwithstanding the long service record, the trust relationship had been broken irreparably.
In the case: Timothy v Nampak Corrugated Containers (Pty) Ltd v the CCMA and others (2010) 8 BLLR 830 (LC), the employee misrepresented himself as a legal representative of his employer. Once again, the CCMA found that dismissal was too harsh. This decision was overturned by the Labour Court on review. In a further appeal to the Labour Appeal Court, the latter made it clear that progressive discipline is not applicable to dishonesty as the trust relationship could not be restored in these circumstances.
In the case: South African Transport and Allied Workers Union and others v Khulani Fidelity Security Services (2011) 32ILJ 130 (LAC), the refusal of employees to undergo a polygraph test was found to be a fair ground for dismissal on the basis of the employer’s operational requirements. The purpose of the polygraph test had not been to prove theft but rather to test the integrity of the employees involved. The dismissal could be justified on the basis of the employer’s operational requirements and the consultation process complied with s 189 of the Labour Relations Act, 66 of 1995 (LRA).
Whilst the above-mentioned decisions may sound like good news for employers, it should however be kept in mind that it is still incumbent on the employer to prove on the balance of probabilities at a proper disciplinary hearing that dishonesty in fact occurred and that dismissal is an appropriate sanction in the particular case. The mere suspicion, even if this were a strong suspicion, is not sufficient!
Authored by Dr. Lukas Du Preez, Advocate: Specialist in Labour Law, with minor edits by Barbara du Preez-Ulmi