Massbuild (Pty) Ltd t/a Builders Warehouse v CCMA (JR1685/12) [2015] ZALCJHB 234 (4 August 2015) per Myburgh AJ.
The Labour Court reviewed and set aside the award after considering whether there was a fair reason to dismiss, apart from the validity of the reason. It was held that from the employer’s documentary record there was a rule that such misconduct should result in termination of employment. The employer failed to adduce any evidence showing the destruction of the employment relationship.
But ‘in terms of two recent judgments by the LAC, it is not an invariable rule that this has to occur, and a breach of trust can be inferred in the case of certain instances of misconduct’. [footnote omitted] Myburgh AJ was of the opinion that ‘unauthorised possession of company property (in the circumstances that occurred herein) is one of them’.
Some 200 – 300 employees were engaged at the store selling all manner of building supplies and it ‘is difficult to imagine how everyone could be given a chance to be found at least once in unauthorised possession of company property before resorting to dismissal’. That meant that the dismissal was fair, even for the first instance of such misconduct. It is not stated whether the dismissal was summary or not, but giving notice would have made it lawful.