One of our multi-national clients recently lamented the fact that, by a country mile, they experience the highest number of theft-related and dishonesty cases in South Africa, than anywhere else in the world. The unfortunate reality is that our consultancy deals with numerous theft and dishonesty related disciplinary and arbitration hearings on an ongoing basis.
One of the questions which frequently arises is, does the monetary value of the items or money stolen, influence the choice of sanction, and importantly, if the item is of minimal monetary value, does it mitigate against dismissing the culprit?
To begin with, it’s worth remembering what the Constitutional court had to say on sanction selection in Sidumo & COSATU v Rustenburg Platinum Mines Ltd & 2 others (CCT85/06). This judgment, amongst other things, said that “In deciding whether a dismissal is fair a commissioner need not be persuaded that dismissal is the only fair sanction – it is sufficient that the employer establishes that it is a fair sanction”.
In this vein, the Concourt judgment continued that the “Labour Appeal Court in Nampak Corrugated Wadeville v Khoza (held that) the determination of an appropriate sanction is a matter which is largely within the discretion of the employer. However, this discretion must be exercised fairly. A court should, therefore, not lightly interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing the sanction. The question is not whether the court would have imposed the sanction imposed by the employer, but whether in the circumstances of the case the sanction was reasonable.
When all is said and done, said the judgment “In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list”.
It follows therefore, that the monetary value of goods or funds stolen must be considered as a mitigating factor when contemplating sanctions in dishonesty cases, but does it necessarily mean that they will save an employee from dismissal, even if the monetary value is low.
The short answer is, not necessarily. But it may on occasion. For example, the dismissal of an employee in a retails store who pleads guilty to stealing a few sprays of deodorant from a can of deodorant on the store shelf, would be substantively unfair (on grounds that the sanction is too harsh) if there were compelling mitigating factors such as long service, and a clean disciplinary record.
The Labour Appeal Court judgment, in Shoprite Checkers v CCMA & 2 others (LAC: JA08/2004) provides important insights into whether dismissal for the theft of small items. This judgment quoted the Labour Court in Standard Bank SA Limited v CCMA and others  6 BLLR 622 at paras 38 – 41 where Tip AJ said: “It was one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee… A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.”
This judgment continued that the Standard Bank judgment “was followed by Mlambo J (as he then was) in Metcash Trading Limited t/a Metro Cash and Carry and another v Fobb and another (1998) 19 ILJ 1516 (LAC) at para 16 – 17 where the learned judge found that in relation to the consumption of one 250 ml bottle of orange juice “theft is theft and does not become less because of the size of the article stolen or misappropriated”.
The question of whether dismissal for theft, regardless of the value of the stolen items, in the context of prevailing high stock losses, was addressed by the Labour Appeal Court in Leonard Dingler (Pty) Ltd v Ngwenya (1999: 20 ILJ (LAC) – “Was dismissal of the respondent an unfair sanction? I am persuaded that this question falls to be answered in the negative. It is true that the respondent had a long record of service (7 years 10 months…) with no previous record of a disciplinary offence. On the other hand, Oosthuizen testified that the appellant experienced theft by its employees on a large scale. It follows that a measure of deterrence is called for”.