There are numerous CCMA and Bargaining Council arbitration awards and Labour Court judgments which have held that, in certain circumstances, cases of minor theft do not necessarily warrant dismissal. That’s not always true however. There are indeed circumstances of minor theft, involving a relatively insignificant financial loss to the employer, which do none the less warrant dismissal.
Our Courts have, over the years, been required to address the question of whether, or not, the value of that stolen by an employee has any baring on the automatic assumption that ‘theft is theft’ and will always justify dismissal.
One of the most often referred to cases on this issue goes back to a Labour Appeal Court in Anglo American Farms v Komjwayo (1992) 13 ILJ 573, in which a waiter was dismissed for the consumption of a can of Fanta cool drink.
The employee’s defence was that the cool drink had been paid for by the guest, but left it behind. The employer was appealing the Industrial Court’s finding that the decision to dismissal the employee “was clearly unreasonable and unfair inasmuch as it was too harsh, bearing in mind the nature and small value of the property stolen” amongst other things”.
The Labour Appeal Court came to a different conclusion, holding that the dismissal of the employee was indeed fair. More especially, the Labour Appeal Court held that “in regards the intrinsic substantive fairness or unfairness of the dismissal, much was made on respondent’s behalf, both in the industrial court and in this court, of the small value of the Fanta soft drink, viz 65 cents. There is no doubt that the value of an article which is stolen may, and often does, play a significant role when the question of an appropriate penalty is considered. However, this role is not always, or necessarily, such that low value is always a conclusive indication that only a lenient penalty is called for” adding that “it seems to me that the relationship between an employer and such an employee is of such a nature that, for it to be healthy, the employer must, of necessity, be confident that he can trust the employee not to steal his stock in trade. If that confidence is destroyed or substantially diminished by the realisation that the employee is a thief, the continuation of their relationship can be expected to become intolerable, at least for the employer. Thenceforth he will, as it were, have to be continually looking over his shoulder to see whether his employee is being honest”.
This case was heard prior to the post-1994 amendments to our labour law regime. Whilst this authority has less standing vis a vis subsequent case law, it remains of relevance. An unsuccessful attempt to steal has been shown to reveal a ‘thieving propensity’.
In the more recent CCMA arbitration hearing in FAWU obo Ngxokolo, Zoliwe Mapu v Summerstrand Hotel (Case number ECPE6770-17), the employee was found guilty of “taking a banana and a box (of) juice from the storeroom”.
Staff were entitled to one meal each per shift, and juice which was in a container in the kitchen. In addition, they were entitled to unlimited access to tea and coffee. On the day in question, the employee had her meal, and thereafter, was observed on a video camera, “getting into the storeroom where she took a banana and a box of juice and ate them”.
The employer submitted that it spent approximately half a million Rand per annum on food for staff, and five other employees had been dismissed from the kitchen for similar offences in the kitchen.
The employee admitted having taken the banana and juice after having been shown the video footage. She had recently been promoted, and had taken the food in front of a more junior employee. To make matters worse, she showed no remorse. In her defence, the employee submitted that she was dizzy before she took the banana and juice, as she had a chronic condition, continuing that she “took” the items, but did not “steal” them.
The Commissioner held that the employee was in constant denial of the charge of unauthorised possession of company property “even though she admitted to taking the banana and juice without authorisation and eating them. Denials cannot come in a worse form than that”. The arbitration award continued that “her denials and hiding behind improbabilities were a demonstration of a lack of remorse on the part of the (employee)”.
The dismissal of the employee was held to have been fair.
Unfortunately, but not unsurprisingly, employee postings on social media platforms which put the good name of their employer into disrepute, are becoming increasingly common.
More often than not, the social media postings are of such a nature that the dismissal of the employee is warranted.
In the Labour Court judgment in Juda Phonynogo Dagane v SSBC and Others (Case number: JR2219/14) delivered on 16 March 2018, the employee sought to review a CCMA arbitration hearing finding that his dismissal for having made racist remarks about his employer, SAPS, on Facebook, was unfair.
As was stated in the judgment “the facts are fairly straightforward”. The allegations levelled against the employee at the disciplinary hearing comprised of him “prejudicing the discipline and efficiency of the SAPS and contravened the SAPS regulations, code of conduct and code of ethics by unfairly and openly discriminating against others (whites) on the basis; through blatantly discriminatory racial remarks; by threatening the future safety and security of white persons; and by making uncalled for remarks on Facebook which amounted to hate speech”.
The Facebook postings were described as “vitriolic racist comments” in the judgment and contained profanities threatening genocide and hatred of a racial grouping”.
The employee submitted that the Commissioner in the arbitration hearing had not applied her mind to the evidence before her, and had come to a conclusion that another reasonable arbitrator could not have arrived at. In addressing this, the court noted that it had perused a transcript of the Commissioners findings and when considering whether the dismissal was for a fair reason, the court concluded that the Commissioner had applied her mind reasonably in concluding that the remarks made by the employee on Facebook were contrary to the Constitution of the Republic of South Africa, the SAPS code of ethics and the SAPS code of conduct “all of which prohibit discrimination and exhort the citizens of our democracy to treat everyone with equal respect and to create a safe and secure environment for all South Africans”.
The employer also argued that the employer had no policy regarding social media within the workplace.
The court noted that the arbitrator had “noted that it was common sense that people should be careful about what is said on social media as such utterings would be in the public domain. The court held that “this too is a reasonable evaluation by the Commissioner and one that any reasonable decision maker could have arrived at”.
The employee also submitted that someone had created a Facebook account using his details, or that “someone had hacked into his account and made these postings”.
This submission was held to be improbable as access to the employee’s Facebook account “would need his password and that he had not given anyone his password”.
Notably, the court also held that if indeed someone had hacked into his account “the applicant would have distanced himself from making the remarks, which he did not do”.
The court further held that the arbitrator had reasonably concluded, in relation to the totality of evidence that was before her, that “on a balance of probabilities the employee was the author of the offensive and racists remarks; that he had posted them; that he had breached a rule of conduct within the workplace; and that his remarks on Facebook offended the Constitution as they were discriminatory and constituted hate speech”.
Turning to the question of the severity of the sanction of dismissal, the court held that the dismissal of the employee was an appropriate sanction, as the arbitrator had “considered that the applicant was employed as a police officer with a mandate to protect its citizens irrespective of the race, colour and creed of such citizens. She considered that to threaten the safety of another sector of the community was wrong and that the conduct of the applicant did have the effect of bringing the SAPS into disrepute”.
More recently, in Hotz v UCT (SCA:2016) racial slurs were denounced in the judgment which held that “The issue of the content of the slogans, whether painted on the War Memorial and the bus stop or worn on a T-shirt, as well as statements, such as those made by the third appellant in the confrontation with a student, is a delicate one. Freedom of speech must be robust and the ability to express hurt, pain and anger is vital, if the voices of those who see themselves as oppressed or disempowered are to be heard. It was rightly said in Mamabolo that ‘freedom to speak one’s mind is now an inherent quality of the type of society contemplated by the Constitution as a whole and is specifically promoted by the freedoms of conscience, expression, assembly, association and political participation protected by sections 15 – 19 of the Bill of Rights.’ But in guaranteeing freedom of speech the Constitution also places limits upon its exercise. Where it goes beyond a passionate expression of feelings and views and becomes the advocacy of hatred based on race or ethnicity and constituting incitement to cause harm, it oversteps those limits and loses its constitutional protection.”
From time to time, disciplinary cases evolve in which there is only one employer witness, whose evidence is, invariably, contested by the employee. It’s the “one person’s word against another case”. In more legal parlance, the chairperson, or Commissioner, is faced with two so-called mutually destructive versions. The question is, can one be preferred over another, and if so, in what circumstances?
One guiding principle is that the demeanour of witnesses should closely monitored when determining witness credibility.
As one would expect, there are legal principles which address this conundrum. The arbitration hearing in Bheki Innocent Ngobese v Water Weights Natal CC (Case number MEKN7225) presented the Commissioner with one such conundrum. In analyzing the evidence, the Commissioner lent on various prior judgments which give guidance on how to treat cases with mutually destructive evidence.
To begin with, the Commissioner referred to the case of S v Kelly 1980 (3) SA, in which the court said “there can be little profit in comparing the demeanor only of one witness with that of another when seeking the truth. In any event, demeanour is, at best, a tricky horse to ride”. Demeanour, as a factor determining witness credibility, should not approached with caution, and not be exaggerated as a key factor in determining witness credibility. This was alluded to in S v Mgengwana 1964 (2) SA in which the court noted the challenge faced with assessing the demanour of a witness who wear masks.
The Labour Court, in Masilela v Leonard Dingler (Pty) Ltd  25 ILJ stated that when faced with two mutually destructive versions, or one person’s word against another case, “This court is faced with two mutually destructive versions, only one of which is correct. I deciding which version to accept and which one to reject, I am obliged to consider inter alia, the issue on a balance of probabilities. The onus is on the respondent (the employer) to prove that its version is the truth. The onus is discharged if the respondent can show by credible evidence that its version is te more probable version”.
A further tool utilised to determine witness credibility, is how the witnesses perform under cross-examination.
The critical factors to be considered when seeking to make a credibility judgment when confronted with to irreconcilable versions, were outlined in the Supreme Court of Appeal in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell Et Cie and Others [2003 (1) SA 11 (SCA)] – “To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probabilities and improbabilities of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when the court’s credibility findings compel it in one direction and evaluation of the general probabilities in another. The more convincing the former, the less convincing will be latter. But when all factors are equipoised probabilities prevail.’
This emphasises the point that it is not the quantity of the evidence presented by the employer and the employee, but rather the probabilities which flow from all the evidence, which in certain circumstances, may be one, single witness. Relying on a sole witness will always, none the less, place a greater burden on an employer.