A recent 13 February 2020 Labour Appeal Court judgment in Autozone v Dispute Resolution Centre of Motor Industry & 2 others (Case number JA52/2015), it was confirmed that the attempted theft of R30.00 by an employee, does indeed amount to misconduct if such a severe nature as to conclude that the trust relationship is thereby broken beyond repair, justifying the dismissal of the employee.
This is not the only judgment which confirms that dishonesty involving relatively small sums of money, or items of relatively small monetary value still, frequently justify dismissal.
Over time, there has been much debate about whether, or not, the value of money or good stolen by an employee, has any bearing on the sanction to be imposed.
The Autozone Labour Appeal Court judgment, by and large, reinforces the judgment 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 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”.
A similar approach was adopted in 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.”
The Autozone Labour Appeal Court judgment addressed the same issue, and the rights of employers faced with employees who display “a stratagem of dishonesty or deceit”.
The facts of the case were quite simple. The employee in question had been employed by the employer as a driver for approximately six and a half years. On a given day, he was instructed to employ casual labour to “clean up waste and rubble at the of the store”. The employee then did so, after which the Regional Operations Manager, in the presence of the employee, informed the three casual labourers that they would each be paid R50.00 for the task. Once the task was completed, the Regional Operations Manager, in the presence of the Branch Manager of the store, instructed the employee to obtain R150.00 from the cashier to pay the three casual labourers.
However, the employee approached the cashier and requested R180.00, not R150.00. The three casual labourers were unhappy with only receiving R50.00 each for the task and approached the Branch Manager to complain of this.
The Branch Manager then confronted the employee, and asked him why he had requested R180.00 from the cashier, but only paid R150.00 over to the casual labourers. The employee then took the remaining R30.00 out of his pocket, “but did not provide an explanation at that point”. He later explained that “he had acted on his own initiative” to withhold the additional R30.00, until the work was complete; according to the employee, two “things” had apparently not been emptied to his satisfaction. The three casual labourers were then given the additional R10.00 each by the employee.
The employer dismissed the employee, after convening a disciplinary hearing. At arbitration, the CCMA upheld the fairness of the dismissal. However, on review, the Labour Court held that “there is no evidence that shows that the conduct for which the employee was found guilty of impacted on the relationship of trust between the parties”, and that “because there was no proof that the trust relationship between the parties had broken down”, the dismissal was substantively unfair, and the employee was reinstated on review, with a written warning.
The Labour Appeal Court disagreed, and quite rightly held that “Dishonest conduct, deceitfully and consciously engaged in against the interests of the employer, inevitably poses an operational difficulty. The employer thereafter will be hard pressed to place trust in such an employee”.
And perhaps most tellingly, the judgment continued that “the operational requirements of the employer alone, therefore, may very well justify dismissal … the nature of the offence and the manner of its commission support a conclusion that the continuation of the (employment) relationship had become intolerable”.
The employer appeal was upheld, and the dismissal of the employee was declared substantively fair.
Make no mistake, whilst dismissals on grounds of ill health can be fair in our law, as with all cases of dismissal, there are very specific procedures to be followed. What makes these kinds of cases all the more challenging, is that there is no fault on the part of the employee; they are simply, and most unfortunately, the victims of ill health over which they have no control.
Be that is it may, our law deals with precisely these scenarios. When considering the fairness of a dismissal on grounds of ill health, our courts, the CCMA, and Bargaining Councils, must “consider the provisions of Items 10-11 of the Code of Good Practice: Dismissal, which are binding on all commissioners as dictated by the provisions of section 188 (2) of the Labour Relations Act”, as noted in the Labour Court judgment in National Bargaining Council for the Road Freight Logistics Industry v the CCMA 7 2 others Case number 875/15.
When reading items ten and eleven of the Code, you will find an explanation of how employees should be treated in cases of temporary and permanent ill health or injury. They are precisely the steps any one of us would want our employer to follow if we were the employee afflicted with ill health or injury.
For example, “the employer should investigate the extent of the incapacity or the injury”; “the employer should investigate all the possible alternatives short of dismissal”; “the possibility of securing a temporary replacement for the ill or injured employee” and in cases of permanent incapacity “the employer should ascertain the possibility of securing alternative employment, or adapting the duties or wok circumstances of the employee to accommodate the employee’s disability”.
The schedule goes onto say that “Any person determining whether a dismissal arising from ill health or injury is unfair, should consider (1) whether or not, the employee is capable of performing the work; and (2) the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this I not possible, the extent to which the employee’s duties might be adapted; and, (3) the availability of any suitable alternative work”.
In our experience of such cases over many years, when the incapacity (ill health or injury) is first identified, the cards are, quite understandably, stacked in favour of the employee. The employer must show reasonable accommodation, investigate the incapacity, and monitor the situation.
As time goes by however, the pendulum swings towards the interests of the employer, which are, after all, also legitimate. It should come as no surprise that ill health can be of both a physical and mental health, nature.
In “ IMATU obo Strydom v Witzenburg Municipality & others (Labour Appeal Court: 2012) 7 BLLR 660, it was noted in the judgment that “My reading of item 10 and 11 gives me the impression that an incapacity enquiry is mainly aimed at assessing whether the employee is capable of performing his or her duties, be it in the position he or she occupied before the enquiry or in any suitable alternative position. I am of the view that the conclusion as to the employee’s capability or otherwise can only be reached once a proper assessment of the employee’s condition has been made. Importantly, if the assessment reveals that the employee is permanently incapacitated, the enquiry does not end there, the employer must then establish whether it cannot adapt the employee’s work circumstances so as to accommodate the incapacity, or adapt the employee’s duties, or provide him with alternative work if same is available.
I must mention that I have no doubt in my mind that permanent incapacity arising from ill-health or injury is recognised as a legitimate reason for terminating an employment relationship and thus an employer is not obliged to retain an employee who is permanently incapacitated if such employee’s working circumstances or duties cannot be adapted. A dismissal would, under such circumstances be fair, provided that it was predicated on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal”.
Finally, in short, extra special attention should be given to employees injured at work, as evident in item 10(4) of the Schedule, which informs us that “particular consideration should be given to employees who are injured at work, or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.
Many employers have experience of strike action, protected or otherwise, which results in unacceptable striker behaviour, such as intimidation and malicious damage to property. The employer then trundles off to the Labour court to obtain an interdict to restrain the strikers and, on occasion, their picketing rights.
One question which arises, is whether, or not, an employer is entitled to discipline, and ultimately dismiss, a striker for apparently acting in breach of the Court interdict? This precise question was answered in a 21 January 2020 Labour Court judgment in Panorama Park Retirement Village v Commission for Conciliation Mediation & Arbitration & 1 other (Case number JR2472/2015).
At the outset, the judgment informs us that “The question that arises in this review application is whether it is substantively fair to dismiss an employee on allegations of being in contempt of a Court order”.
The background to this case was one which many employers will be familiar with. The union embarked on a protected strike, after which the parties agreed picketing rules at the CCMA. As is all too common, the strikers misbehaved, and the employer approached the Labour Court and obtained an interim Order “Interdicting and restraining the first Respondent as union and the second to 49th Respondents from striking and/or picketing closer than 100 meters from each side, left or right, and within fifty meters in front of each entrance of the entrances (Green and Reg gates) in Best street, Klerksdorp to the Applicant’s property”. Except it did not have the desired effect.
However, management observed one of the strikers who, at approximately 4pm, after the interdict had been obtained “cycling from town on his way home in Best Street close to the Employer’s premises in contravention of the terms of the Court order”.
The employer was of the opinion that it had the authority to discipline the striker in question, for his contravention of the Court Order interdicting the strikers from picketing within one hundred meters of the entrances of the employer’s premises. The employee had also allegedly come across, and spoken with, two replacement workers.
The employer then initiated a disciplinary process, charging the employee with “Contempt of Court: On Thursday 23rd July 2015 at approximately 16h00 you were observed by the assistant manager of Panorama Aftree Dorp, riding up and down Best Street, Oudorp, passing the Red gate, which is one of the entrances to Panorama Park Aftree Dorp. Your actions … is contravention of the ruling of the honourable Justice Whitcher’s Court order on 2nd July 2015, Case No. J1309/15, paragraphs 2.2 and 2.3, in that you harassed and threatened replacement labour and striking closer than 100 meters from each side left or right and within fifty meters in front of each gate of the entrances (Green and red gates)…. Your behaviour amounts to contempt of a Labour Court order”.
Once the disciplinary hearing, the employer abandoned the charges related to allegations of intimidation and threatening violence, and only focused on the contempt of Court misconduct allegation. The employee was found guilty and dismissed.
Unsurprisingly, he appealed the fairness of his dismissal at the CCMA. The Commissioner held that the dismissal of the employee was unfair, noting that “(1) Only the Courts were empowered to determine whether there was contempt of its orders and if so, what sanction to impose. A court order however could not be said to be an instruction issued by an employer and that disobedience of a court order cannot amount to insubordination within the employment context. (2) The Employer failed to prove on a balance of probabilities that a workplace rule existed in respect of which it had the power to discipline and dismiss the Employee. In the absence of such a rule related to contempt of court, it could not be said that the Employee was guilty of a breach of a rule. (3) Even if such a rule existed, it could not be said that the Employee had breached that rule since the Court order did not restrain or prohibit employees from being in the area when they were not picketing and on strike. The Employee as observed in the area was not ‘striking or picketing’, but was on his way home from town, which was his usual route. He had stopped to speak to the two other employees at the end of their shift, and there was nothing wrong with what he did”.
The Labour Court agreed – “The Commissioner in this case had regard to the essence of the charge of contempt of Court and correctly concluded that it is only the Court that could pronounce on whether there was contempt of its orders or not”.