Dishonesty in the workplace can irrevocably break down trust relationships. RMI industrial relations specialist David Van Rooyen looks at cases that have led to dismissal.
Dismissal is not an expression of moral outrage or an act of vengeance. It is, or should be, a sensible response to risk management. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of minor theft; it has everything to do with the operational requirements of the employer’s enterprise.” (Extract edited – Labour Appeal Court: De Beers Consolidated Mines and CCMA.)
Despite a clean record
An employee found some scrap metal in the company’s skip, which he thought might fix his stove at home. Unfortunately, he didn’t get permission to take the scrap off the premises. On his way out, he was searched and the scrap was found in his bag. He was charged with theft, called to a disciplinary inquiry and dismissed. At the CCMA, the arbitrator accepted that he was guilty of stealing the metal, but concluded that dismissal was too harsh, taking into account his 25 years of service and clean disciplinary record. The employee was reinstated with benefits, but without back pay.
In the Labour Appeal Court, the company stated that it had a policy of zero tolerance for dishonesty and his theft had destroyed the trust relationship. The employee admitted the theft, but tried to convince the judge that his conduct was not theft in the strict sense of the word. However, the judge would not water down the accepted meaning of theft. With regard to the 25 years service and clean record, the court confirmed that the damage done to the trust relationship by serious misconduct outweighs long service and a clean record. The court concluded that the arbitrator’s decision to reinstate was not reasonable and that the employee’s dismissal for operational reasons was fair – “he undoubtedly breached the relationship of trust built up over many years of honest service. The company had a consistent policy of zero tolerance for theft and that had been clearly conveyed to all the employees. The commissioner’s award was not justifiable in relation to the reasons given for it. The dismissal was justified for operational reasons and fair”.
A female employee was caught on camera, on two separate occasions, concealing a blouse and a belt under her clothing. She was charged with gross misconduct in that she had “concealed merchandise without paying for it, which resulted in a loss to the company”. Despite 23 years’ service, in the opinion of management her conduct had destroyed the trust relationship. She was dismissed but challenged her dismissal at the CCMA. She did not deny hiding the items under her clothing, but said that the blouse was a waste garment with no value and she had put it there to absorb her perspiration because her work area was hot. As for the belt, she “felt like putting it there”.
With regard to the blouse, the arbitrator wasn’t satisfied that Anna had acted with dishonest intent and her conduct was more like unauthorised use of company property. In the case of the belt, the company had not proven that the belt was company property. In the opinion of the arbitrator, the employee was not guilty on the first charge, but guilty on the second charge. She was reinstated with a final warning. In the Labour Appeal Court, the judge viewed the DVD footage and concluded that her conduct indicated concealment with dishonest intention. In the opinion of the court, the arbitrator had acted unreasonably and had no rational basis on which to accept her explanation for her conduct – “it has long been held that the employer’s decision to dismiss an employee will be interfered with only if that decision is found to have been unreasonable and unfair. The fact that an employee has had a long and faithful service is a persuasive factor against dismissal, but is not decisive. There are certain acts of misconduct which are of such a serious nature that no length of service can save an employee from dismissal. The employee committed, on two successive days, acts of gross misconduct involving gross dishonesty, which justified the employer’s conclusion that the trust relationship between it and the employee had broken down irreparably”. (Extract edited – Labour Appeal Court: Woolworths and CCMA.)
Ignorance is no excuse
Rainbow Farms provides free milk, tea, coffee and bread in its canteen and a company rule prohibits taking free milk from the premises without permission. An employee was found with some free milk on leaving the premises and he was charged with unauthorised possession/removal of company property. After an inquiry, he was dismissed. At the CCMA, the arbitrator accepted that there is a company rule, but concluded that the employee was unaware of the rule or that he was doing anything wrong. The Labour Appeal Court did not agree and concluded that it was clear that the employee had breached a well-known rule that had been consistently applied by management. The employee had been dishonest and his conduct had destroyed the trust relationship. The dismissal was substantively and procedurally fair.
1. PAK le Roux, ‘The Labour Appeal Court’s approach to dishonest employees’, Contemporary Labour Law, August 2011, Published by Gavin Brown and Associates.
2. Juta’s Labour Library, Published by Juta and Company.