Nadira Deonarain and Yogesh Singh
Bowman Gilfillan Attorneys
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  12 BLLR 1211 (LAC) (the Zondo judgment) and  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.:
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:
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:
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:
Although there is an obligation to consider mitigating factors, the presenter must show clearly why they are outweighed by other factors, for example:
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.