Who would have thought that stirring a cup of tea or coffee during working hours could lead to a Shoprite baker’s dismissal and a subsequent legal battle?
in a recent Labour Court decision, Case No: PR98/2023 Shoprite Checkers (Pty) Ltd v Godfrey Makaloi and 2 Others, the complexities of workplace misconduct were brought into focus when a seemingly minor incident escalated into a legal battle. The case, which revolved around the alleged theft of a small quantity of sugar, highlights the importance of solid evidence and thorough investigation when dealing with accusations of employee misconduct.
The Baker, referred to as the “employee”, was employed as a baker by his employer at one of its Shoprite stores in Kimberley South Africa. The baker, an employee with a clean service record of 31 years (since 1991)at the time of his dismissal was dismissed after the company claimed that he was seen on company CCTV footage stirring sugar into his drink in an area which was not a designated areas for consumption of food. The company concluded that the sugar came from their 25kg canister in the bakery, therefore he was shrinking the stock.
The alleged misconduct involved the alleged theft of a spoon or two of sugar from its Bakery stock. The Employee was charged with serious misconduct, i.e. theft, where he allegedly stirred sugar into his warm drink on company time in an area which was not designated for the consumption of food or drink. The Employee was subjected to an internal disciplinary hearing and the charges preferred against the Employee were among others, the consumption of company stock and not adhering to the policy relating to staff buying procedures. The Employee was charged with serious misconduct. He was alleged to have, between 17th and 22nd of October 2022;
- consumed the company’s stock, in an undesignated area;
- failed to follow staff buying procedures; and
- Which caused the Applicant’s stock shrinkage.
Upon his dismissal after a disciplinary hearing, the Employee tried to fight the actions of the company legally. The matter was taken to Arbitration at the Commission for Conciliation Mediation and Arbitration (CCMA). At the Arbitration, the company relied exclusively on CCTV footage to prove its case, however, the footage failed to show the employee drinking his warm drink. The company attempted to argue that the Employee had stolen sugar from the sugar reserved exclusively for use in producing baked goods. The Employee’s actions as alleged caused the Employer to link such actions to shrinkage of stock in the bakery.
The Employer, relying heavily on CCTV footage and inferential reasoning, sought to justify the dismissal of an employee, but ultimately failed to meet the legal standards required to prove theft. This case underscores the risks employers face when assumptions replace concrete evidence, and it serves as a reminder that even seemingly trivial incidents can have significant consequences in employment law.
Employees’ Case at Arbitration; The employee admitted, during the arbitral proceedings, that he used sugar in his warm drink. However, he denied that this sugar was taken from the company’s canister (which was referred to in the transcribed record as “department sugar”
Arbitral Decision; Commission for Conciliation Mediation and Arbitration (CCMA) commissioner Zoliswa Tabo ruled that while the dismissal was procedurally fair, it was substantially unfair. In her 10-page arbitral award, the Commissioner found that the employee was procedurally fairly dismissed, but that this dismissal was substantially unfair.
The Arbitrator’s award made provision for the calculation of back-pay of some 3 months and 2 weeks; reinstatement to his previous position, with effect from 10 January 2023.
RECOURSE TO LABOUR COURT.
Aggrieved by the ruling, Shoprite Checkers took the matter to the Labour Court to overturn the CCMA’s decision. In the appeal, Shoprite Checkers wanted the court to either order that the baker’s dismissal was substantively fair, or to remit the dispute back for reconsideration before another commissioner or arbitrator.
n the labour Court, the Company argued that at this specific Shoprite store, employees followed a customary practice of bringing personal containers to collect complimentary consumables (tea, coffee, sugar, and powdered milk) provided by the Employer for consumption during work hours. These items were typically stored in individual lockers for employees to access as needed. However, occasionally, an employee’s ration of sugar, etc., would be kept in the bakery area where they worked, rather than in their locker.
Meanwhile, Makaloi the employee argued that he kept his personal supply of sugar in the bakery area, same place where the store also kept its sugar in a canister.
The key issue for the Commissioner to determine was whether the Employer had sufficiently substantiated the allegations against the Employee solely based on CCTV footage and circumstantial evidence. Mr. Beukes, the grocery manager, provided no direct testimony of the incidents, instead offering an unsubstantiated interpretation of the CCTV footage from the bakery area, which the court deemed unhelpful. Furthermore, the court observed that no inventory check or stock-take had been conducted to substantiate the claim that sugar was misappropriated from bakery stock for non-bakery purposes. The Employer failed to provide conclusive CCTV evidence that the Employee had consumed the sugared beverage in question.
Judge DA Smith stated that there was no direct proof of the sugar’s source. The store’s assumption that the sugar came from the baking supplies was deemed unreasonable by Judge Smith.
The judge additionally observed that a witness testified to providing Makaloi with his personal sugar allocation from the cash office department, which testimony remained uncontroverted. Furthermore, the judge ruled that Shoprite Checkers failed to establish its case, resulting in the dismissal of the application and the affirmation of the CCMA’s decision.
MULTIFACETED ANALYSIS OF THIS CASE.
Employers must conduct thorough and exhaustive investigations to adduce credible evidence which proves an employee’s culpability satisfying the civil standard of proof and balance of probabilities for an alleged act. Employers can’t use assumptions to fill evidence gaps. They must provide reliable and credible evidence showing it’s more likely than not the employee committed misconduct. CCTV footage alone can only support a guilty finding if it unmistakably proves all elements of misconduct, without needing additional inference. The evidence must demonstrate that, on the balance of probabilities, no plausible alternative explanation exists, and the employee’s commission of the alleged misconduct is the only reasonable inference.
While the court did not address this issue, it is crucial to recognize that Employers utilizing CCTV footage must additionally adhere to the evidentiary rules governing the admission of film and video recordings.
This case highlights the importance of ensuring both procedural and substantive fairness in employee dismissals. While employers have the right to safeguard their property and maintain workplace policies, they must also provide clear and concrete evidence when making allegations of misconduct. It also serves as a reminder that fair labour practices require a balance between protecting business interests and upholding employees’ rights. The acceptability of using company property differ on a case to case basis such as the specific circumstances, contractual obligations, and ethical considerations.
Also, while rules and policies are essential in a workplace, it is important to consider the context and severity of the infraction. In this case the baker did not cause any harm or distractions to the workplace and it could be argued that the punishment did not fit the crime. Others argue that a more appropriate response could have been a warning or a reminder about the company policies and not an outright dismissal.
Ultimately, it is important to acknowledge that they companies have polices and they are enforceable. Both parties should strive for a balanced and reasonable approach to workplace rules and policies.
FINAL THOUGHTS: Was Justice Served or was it a case of sour grapes?
