Pick ‘n Pay Retailers (Pty) Ltd v CCMA (C1083/14) [2015] ZALCCT 73 (3 December 2015) per Rabkin-Naicker J.
The Commissioner found that the dismissal of the employee was substantively unfair and reinstated her with effect from 3 September 2014, as though the dismissal had not occurred, with continuity of employment and accrual of all benefits other than full remuneration. The period from 3 September to 15 October 2014 was treated as unpaid suspension. The employee had been employed since September 1993 and from 2007 she was a ‘Deli Manager’. On 3 September 2014 she was dismissed for the unauthorised consumption of company stock: “in that you consumed cheese in your department on the 9th of the 5th 2014 without authorisation” and the breach of the company’s tasting policy in respect of same. She admitted tasting a piece of grated cheese in contravention of the company’s ‘tasting policy’.
Comment:
Once again the Judges have correctly confirmed the importance of distinguishing between a valid reason and a fair reason to dismiss. It must be stressed that to be valid the reason need only relate to ‘conduct’ and not ‘misconduct.’. So misconduct that clearly makes continued employment intolerable will be regarded as a valid and fair reason, because if seriously damages or destroys the necessary trust relationship in employment. If senior management cannot continue to have ‘confidence’ in an employee’s conduct or performance then the reason relating to conduct or capability may also be fair. With respect Rabkin-Naicker J and the commissioner in this matter were correct in making the important distinction and reinstating the employee.
Excerpts
[5] On my reading of the award, indeed on its face, the Commissioner accepted the validity and importance of the rule breached given the problems of shrinkage experienced by the company, but not what he refers to as a ‘slavish imposition’ of the dismissal penalty in respect of its breach. In Shoprite Checkers (Pty) Ltd v Mzolo[1] the issue of a ‘zero tolerance policy’ and a Commissioner’s duties to evaluate the fairness of a dismissal were also in issue. The LAC per Landman JA dealt with certain ‘general considerations’ applicable to cases of this type:
“ [17] It is also necessary to make some further remarks as regards dismissal for a first offence i.e. a “zero tolerance” policy. A dismissal will only be fair if it is procedurally and substantively fair. A commissioner of the CCMA or other arbitrator is the initial and primary judge of whether a decision is fair. As the code of good practice enjoins, commissioners will accept a zero tolerance if the circumstances of the case warrant the employer adopting such an approach.
[18] But the law does not allow an employer to adopt a zero tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence, and then expect a commissioner to fall in line with such an approach. The touchstone of the law of dismissal is fairness and an employer cannot contract out of it or fashion, as if it were, a “no go area” for commissioners. A zero tolerance policy would be appropriate where, for example, the stock is gold but it would not necessarily be appropriate where an employee of the same employer removes a crust of bread otherwise designed for the refuse bin. See the incisive contribution by André van Niekerk “Dismissal for Misconduct – Ghosts of Justice, Past, Present and Future” in Le Roux R and A J Rycroft (eds) Reinventing Labour Law: Reflecting on the First 15 Years of the Labour Relations Act and Future Challenges (Juta 2012) 102-119. Commissioners should be vigilant and examine the circumstances of each case to ensure that the constitutional right to fair labour practices, more particularly to a dismissal that is fair, is afforded to employees.” (my emphasis)
[6] The Commissioner in this case did take account of the serious problem the company was facing, as well as all other relevant circumstances arising from the evidence before him. He found the Company’s approach amounted to one of zero-tolerance. He also pertinently considered the fact that this was a first offence, as well as the very long service of the employee. His assessment of the fairness of dismissal as an appropriate sanction cannot be faulted in my judgment, even his use of the word “morally” was not apposite. The decision is also in line with the concept of proportionality as set out above by the LAC, bearing in mind the scale of the unauthorized consumption by this employee. In addition, the Commissioner did not award full back-pay in the light of what he described “as the seriousness of the misconduct” and recorded the period 3 September to 15 October 2014 as an “unpaid suspension”.