The recent judgment of the Labour Appeal Court (26 July 2011) records that on or about 10 February 2005 the services of an employee with nearly 23 years service were terminated after she ‘was convicted of the gross misconduct as charged’. She concealed merchandise without paying for it. In allowing the employer’s appeal the LAC confirmed that the termination of employment was both procedurally and substantively fair. The LAC set aside the review judgment of the Labour Court (Molahlehi J) and also the CCMA’s retrospective reinstatement award.
The LAC judgment of Ndlovu JA, with Davis JA and Sandi AJA concurring, in Woolworths (Pty) Ltd v CCMA unreported JA30/10 dated 26 July 2011, is important in a number of respects.
It is necessary to take issue with the use by the employer and the LAC of language suggesting the employee was a criminal. From the report the employer does not appear to have referred the matter to the police.
It is submitted that it was totally unnecessary and unwise for the employer and the LAC to have used words such ‘charge’, ‘charge-sheet’, ‘arraigned and convicted’, ‘offender’, ‘conviction’, ‘guilty’ and ‘sanction’. The law simply requires employers to prove that the conduct of an employee must provide a legitimate (valid), lawful and fair reason to terminate employment after ‘hearing’ the employee’s explanation. In the absence of ‘gross misconduct’ employers are required to pay reasonable notice pay (BCEA and common law).
Important issues dealt with in the LAC judgment
#1 Use of CCTV cameras to capture images of an employee’s conduct;
#2 Concealment and the importance of trust in the employment relationship;
#3 Need to reconstruct the record of the proceedings in the CCMA;
#4 Relevance of long service;
#5 Splitting of reviews of awards into 2 parts (a) findings; and (b) outcome;
#6 Shifting of evidentiary burden when there is prima facie evidence of misconduct;
#7 Nature of gross irregularities and misdirections;
#8 Nature of section 145 reviews;
#9 Interpretation of employer’s Honesty Code of Practice and Disciplinary Code;
#10 Distinction between the wording of criminal charges and misconduct ‘charges’;
#11 Relevance of absence of proof of actual loss.
These are some extracts from the judgment, with footnotes omitted.
“[22] Mr Myburgh SC, for the appellant, submitted that the fundamental problem with the judgment of the Court below was that the Court seemingly approached the matter on the basis that the review was restricted to an attack on the Commissioner’s decision on sanction. He contended that the Court below completely overlooked the fact that the appellant’s grounds of review were in respect of both the Commissioner’s findings on the merits of the dispute (related to both incidents of 18 and 19 January 2005, being the blouse and the belt incidents, respectively), as well as the sanction substituted by the Commissioner and which related only to the blouse incident”.
“[32] Unlike in criminal proceedings where it is said that ‘the description of any statutory offence in the words of the law creating the offence, or in similar words, shall be sufficient’, the misconduct charge on and for which the employee was arraigned and convicted at the disciplinary enquiry did not necessarily have to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the appellant’s disciplinary codes, referred to above. It was sufficient that the wording of the misconduct alleged in the charge sheet conformed, with sufficient clarity so as to be understood by the employee, to the substance and import of any one or more of the listed offences. After all, it is to be borne in mind that misconduct charges in the workplace are generally drafted by people who are not legally qualified and trained”.
“[35] Indeed, I find it difficult to comprehend the reasonableness of the grounds on which the Commissioner came to the conclusion that the explanation furnished by the employee as to her possession or handling of the blouse and the belt, in the manner that she did on those successive days, was honest and probable. In my view, these explanations by the employee were highly improbable, on the papers alone without even the aid of viewing the DVD footage. A viewer of the DVD footage is left without any doubt that the employee’s version ought to have been rejected, not only as highly improbable, but as a glaring and shameless fabrication. It is also to be pointed out that the employee herself conceded that concealing her own belt in the manner that she did was ‘a stupid thing’ for her to have done. Therefore, in my view, it could hardly be imagined that such conduct lent any credence to the employee’s explanation of events, relating to the belt incident, to warrant or deserve description of her version as honest, credible and probable, as the Commissioner found to be the case here”.
“[38] In my view, the most probable inference, in the circumstances of this case, was that the employee wrongfully concealed the blouse in her breast, intending thereby to use it for her own private purpose and thus permanently depriving the appellant of its ownership of the blouse, in the manner which was akin to misappropriation or theft; or attempt to commit such transgression or misdemeanour. Whether or not the employee successfully removed the items from the appellant’s workplace premises without being detected by the appellant’s security personnel, was, in my view, a matter of no relevance. Nothing detracted from the fact that the employee concealed the items in her breast in a manner which clearly constituted an act of concealment of the items. I am satisfied that this conduct was correctly characterised by the appellant as manifesting a dishonest intent on the part of the employee”.
“[44] Consequently, I cannot find any rational basis by which the Commissioner found the employee to be an honest and credible witness who gave probable explanations in relation to her possession of the blouse and the belt. As stated earlier, the DVD footage evidence created a prime facie case against the employee which shifted the evidentiary burden to her to demonstrate her lawful or innocent possession or handling of the two items in question. In my view, she dismally failed to discharge this onus. Hence, the Commissioner ought to have found that the appellant, as the employer, discharged its overall onus of proving, on a preponderance of probability, that the employee was guilty of gross misconduct involving gross dishonesty”.
“[47] For the reasons I have set out, I am satisfied that, in both instances, the employee concealed the blouse and the belt, both of which were the property of the appellant, with the dishonest intention to misappropriate or steal the same, and for that reason, she was justifiably convicted of gross misconduct. As the misconduct involved the element of gross dishonesty, being a first-time transgressor was not, in my view, necessarily a life line that could save the offender from dismissal”.
Rather controversially the following extract seems to conflict with the latest law concerning the ‘reasonable arbitrator’ as opposed to ‘reasonable employer’ test.
“[48] It has long been held that the employer’s decision to dismiss an employee will only be interfered with if that decision is found to have been unreasonable and unfair [County Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC) .See also De Beers Consolidated Mines v CCMA and Others [2000] 9 BLLR 995 (LAC)]. The fact that an employee has had a long and faithful service with the employer thus far is indeed an important and persuasive factor against a decision to dismiss the employee for misconduct, but is by no means a decisive one. In Toyota South Africa Motors (Pty) Ltd v Radebe and Others, this Court held:
“Although a long period of service of an employee will usually be a mitigating factor where such an 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.”
“[49] Accordingly, notwithstanding her long service with the appellant, the employee committed, on two successive days, acts of gross misconduct involving gross dishonesty, in circumstances which, in my opinion, justified the appellant’s assertion that the trust relationship between it and the employee broke down irreparably”.