Friday, May 15, 2009

The employer’s approach to dealing with theft in the workplace has been muddied by two recent conflicting judgments.
The judgements in question, both emanating from the Labour Appeal Court (LAC), are Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 12 BLLR 1211 (LAC) (the Zondo judgment) and [2008] 9 BLLR 838 (LAC) (the Davis judgment).
When presenting the employer’s case before the CCMA, we suggest a two-stage approach which has largely been informed by reconciling the two conflicting judgments i.e.:

firstly lead evidence to prove that the employee committed the misconduct for which s/he was charged; and
demonstrate that the sanction of dismissal was appropriate in the circumstances.

The Misconduct
The nature of the function performed by an arbitrator was described by the Constitutional Court in Rustenburg Platinum Mines Ltd v CCMA 2007 (1) SA 576 (SCA) as follows:
“First, he or she has to determine whether or not misconduct was committed on which the employer’s decision to dismiss was based.  This involves an enquiry into whether there was a workplace rule in existence and whether the employee breached that rule.
“This is a conventional process of factual adjudication in which a commissioner makes a determination on the issue of misconduct. This determination and the assessment of fairness … is not limited to what occurred at the internal disciplinary enquiry.”
Accordingly, when leading evidence to prove that theft was committed, the presenter must draw the Commissioner’s attention to the following:

that the employee knew that theft is prohibited and is a dismissible offence;
that the problem of shrinkage in the industry has become commonplace, with the result that the issue is not about the monetary value of the item stolen, but about the operational requirements of the employer;
the nature of the skrinkage problem in that specific workplace; and
that the rule against theft has been consistently applied in that workplace.

It would be equally useful to attempt to reconcile the two contradictory Shoprite Checkers LAC judgments, as suggested by Advocate C Watt-Pringle SC in his address to SASLAW on 7 April 2009, thus:

because Zondo’s judgment makes no reference to previous relevant case law, it is arguable that it was never his intention to overturn the principles set out in previous cases on this issue.
Davis’s judgment is more recent and is therefore a statement of the more recent law.

Appropriateness of the sanction of dismissal
The appropriateness of the sanction is primarily dependant on the seriousness of the misconduct and its impact on the employment relationship. It is apparent from Rustenburg Platinum Mines Ltd v CCMA that Commissioners must take into account:

the totality of circumstances;
the importance of the rule that had been breached;
why the employer imposed the sanction of dismissal, as he must take into account the basis of the employee’s challenge to the dismissal;
the harm caused by the employee’s conduct;
whether additional training and instruction may result in the employee not repeating the misconduct;
the effect of the dismissal on the employee; and
the employee’s service record.

Although there is an obligation to consider mitigating factors, the presenter must show clearly why they are outweighed by other factors, for example:

an employee with long service should know better;
being a breadwinner or having a number of dependants does not make dishonesty any less serious:
the employer cannot be expected to keep dishonest workers in its employ; and
sending an unequivocal message to other employees that dishonesty is not tolerated.

When leading evidence one must include testimony from management that the misconduct has destroyed the trust relationship. The presenter should stress how the employee’s conduct did not merely damage the working relationship, but destroyed the trust relationship and so rendered a continued employment relationship intolerable, for example the employer’s disciplinary code states that theft is a dismissible offence and a worker with an unblemished record cannot, after an incident relating to an act of dishonesty, continue to be trusted.
When employees do not come clean at the CCMA, it is open to the presenter to argue that the failure to admit the misconduct compounds the dishonest conduct and renders future employment untenable.
It should also be demonstrated why it would not be reasonably practicable for the employer to reinstate or re-employ the employee, for example, it may be that the position the employee occupied prior to dismissal has already been filled on a permanent basis and there are no vacant positions.
Although there are no guaranteed recipes for success before the CCMA as each case turns on its own facts, the above guidelines should assist an employer, at a minimum, in putting its best case forward.
Nadira Deonarain is a senior associate and Yogesh Singh an associate at commercial law firm Bowman Gilfillan