The Labour appeal Court confirmed a number of important principles around misconduct and workplace discipline in the case of Pick ’n Pay Retailers (Pty) Ltd v JAMAFO obo Maluleke and others (2020) 29 LAC.
The employee was a trainer of cashiers. She and a colleague were gifted boxes of chocolates by a customer of the store, which she did not declare and then attempted to exchange for cash. In doing so, she breached a number of company protocols and policies (which she had been well aware of as the trainer) and when she could not succeed, tried to reverse the transactions to try and cover up her activities - involving names and passwords of other employees. She was dismissed by the company on the basis of breaching company policies and attempted fraud, despite her service of 24 years and clean disciplinary record.
The employee did not deny what she had done, but tried to justify her actions by saying that she had not wanted to siphon money from the store, but just to exchange the chocolates for something else. She also maintained that exchanging passwords was a common practice at the particular store and further complained about inconsistency due to her colleague not having been dismissed.
The CCMA found the dismissal to have been both procedurally and substantively fair. The arbitrator was satisfied that she had committed fraudulent activities at her till, ignoring company policies and procedures that she had expert knowledge on, and choosing to rely on ‘general practices’:
She had contravened the workplace rules which she was aware of or could reasonably be expected to have been aware of;
The rules in issue were valid and reasonable;
As a trainer she was supposed to have been exemplary but she flouted the policies.
The Labour Court, on review, set aside the CCMA award on the basis that the sanction was too harsh – firstly, because of the employee’s long service and clean record; and also because it found that her actions (breach of policies) did not imply that she had been dishonest.
The Labour Appeal Court disagreed and dealt with a number of important principles that often arise during internal disciplinary proceedings:
🔻 The characterisation of ‘fraud’ in the disciplinary charges was neither here nor there. Where a disciplinary rule has been contravened and the employee knew that such conduct could be subjected to discipline and had not been significantly prejudiced by the characterisation of the offence, discipline commensurate to the offence found to have been committed, may be imposed.
This is confirmation that workplace disciplinary offences should not be treated and labelled as criminal-style offences. In terms of Schedule 8 of the Labour Relations Act, if a rule / standard that the employee was aware of has been wrongfully broken, misconduct has been committed regardless of the label given to it in the disciplinary code or on the hearing notification. If the employee understood what the essence of the allegation was and could defend him/herself accordingly, the labelling of the ‘offence’ is of no consequence and a commensurate sanction can be meted out. [Read also Xstrata South Africa (Proprietary) Limited - Thorncliffe Mine v NUM obo Mphofelo and Others (JR1091/2011)  ZALCJHB 148; Woolworths (Pty) Ltd v CCMA and others (2011) 32 ILJ 2455 (LAC) and our article “The real reason for misconduct dismissals” – June 2019]
In this case, there were various elements of deceit in the manner in which the return/refund transaction was carried out by the employee that pointed to her nefarious conduct: she had recorded the name of a colleague as a customer, she had served herself from her own till, she had not carried out her professed desire to exchange the goods and finally she had reversed the transaction on her own till with another supervisor’s password - all of which was contrary to company policy.
🔻 The court addressed the question of inconsistency in the application of discipline as follows: The employee was an E-service manager, well versed in till procedures and she trained other employees. She occupied a position of trust which differed materially from that of her subordinate, who was not integrally aware of policies and procedures pertaining to refunds, did not operate a till and did not play a role in processing the refund in question. The two employees’ cases were markedly incomparable and there was therefore a rational basis for the differentiation.
🔻 As regards the matter of sanction, even though the Labour Court focused on the employee’s 24 years of service and her unblemished record to show that her dismissal was unfair – it nevertheless found her misconduct to have been sufficiently serious not to warrant a mere warning but some corrective action. Again - this was no ordinary employee: she had been entrusted with the responsibility to train other cashiers on the very policies and procedures which she not only acted in flagrant disregard of but flouted.
Whilst her 24 years of service is a weighty factor, the LAC emphasised that it must be assessed together with other factors. The Court should strike a balance between the period of service; the gravity of the misconduct and its impact on the employment relationship. The Labour Court had not sufficiently done this.
Length of service would not in all cases come to the aid of an employee. In Toyota SA Motors (Pty) Ltd v Radebe and others 3 BLLR 243 (LAC) the court had held: “Although a long period of service of an employee will usually be a mitigating factor where such employee is guilty of misconduct, the point must be made that there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee who is guilty of them from dismissal. To my mind one such clear act of misconduct is gross dishonesty.”
The acts of misconduct committed in this case were of a serious nature.
Her dishonest acts destroyed the relationship of trust and what made her transgressions even more unpardonable is her failure to show contrition. Her persistence that she acted in terms of common practices did not count in her favour. In Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & others  3 BLLR 241 (LC) the court held that “...whatever the amount of mitigation, the relationship is unlikely to be restored once dishonesty has been established in particular in a case where the employee shows no remorse.”
In another case, a similar approach in respect of these principles was followed by the CCMA in Mhlanga v Dragter SA  12 BALR 1303 (CCMA). In this case, the company’s marketing manager was dismissed with three colleagues for stealing alcohol from the company premises by taking home a large quantity of alcohol made available in an ‘honesty bar’ for consumption on the premises. The employee claimed that it was not possible to steal alcohol which had been offered for free and that he was unaware of any rule that prohibited him from taking alcohol home. He also claimed inconsistency in that a subordinate employee had not also been dismissed.
The Commissioner noted the following:
The company had proved that all employees knew that the honesty bar was for the use and enjoyment of all employees and that alcohol was to be consumed only in the canteen at specified hours. It did not matter that the rule was not written down.
The employee’s claim that one cannot steal something that is offered for free was misguided. If he was unsure of the practice, he could have clarified the situation with another manager who was present. In any event - the furtive manner in which the applicant had placed the alcohol in his bag belied the claim that he thought he was free to do so. The respondent had proved the existence of a rule of which the applicant was aware and had been flouted in a dishonest manner.
That an intern who had taken alcohol home (having been encouraged to do so by his senior and with other differentiating factors) had been given a final warning did not make the employee’s dismissal inconsistent and unfair, because of the seniority of his position. Since the employee had behaved dishonestly, dismissal was appropriate.
A good reminder that workplace discipline should be approached holistically and with an operational perspective related to the nature of the employment relationship and the duty of trust. Trying to escape wrongdoing by arguing technicalities, will not save the day.
Also, seniority is a valid ground for differentiation in sanction: senior employees owe the employer a greater duty of trust and should set an example to their juniors. They should expect more severe consequences for misconduct that breaches this trust.
© Judith Griessel