It is hard to argue with employers who frequently cynically lament that certain employees are so willing to so readily steal, or attempt to steal, from them.
There may indeed be a myriad of socio-economic reasons for this scourge. None the less, it must surely be abhorrent, with employers being quite entitled to view such gross misconduct in a very serious light.
I know from my own experience in my own practice, that theft-related and dishonesty cases are quite common in the workplace.
The Labour Court recently dealt with such a case in the 4 August 2015 judgment in Massbuild (Pty) Ltd t/a Builder’ Warehouse v the CCMA & 2 others [JR1685.12].
The facts were quite straight forward. The employee was routinely subjected to a search in a search cubicle, as is common practice in the retail industry. During the course of conducting the search, in the presence of two security guards, the employee was found to have been in possession of an emergency cell phone charger in his bag, valued at approximately R100.00.
This charger was on sale at the store in question, and the employee had no proof of purchase.
The employee subsequently failed a polygraph test.
The employee was the charged with having been in unauthorized possession of the cell phone charger, and he was dismissed after having been found guilty.
The employee referred an unfair dismissal claim to the CCMA. At the arbitration hearing. The CCMA commissioner held that the dismissal was procedurally and substantively unfair, and the employee was awarded six months compensation.
The employer took the matter on review to the Labour Court.
The Labour Court judge concluded that “the commissioner failed to apply his mind” to various “materially relevant facts”.
This included the fact that the employee had signed a statement confirming that the charger had been found inside his bag during the security search, even though during the arbitration hearing, he had denied that he had been caught in possession of the charger.
The employee had also admitted this during the original disciplinary hearing.
The Judge held that the commissioner’s finding that the charger had not been found to have been in the employee’s possession was unreasonable, and that this commissioner’s failure to consider material facts amounted to “having caused an unreasonable result in relation to guilt.
The Court set side the arbitration award declaring the dismissal unfair, and awarding the employee six months compensation, and replaced it with an order that the dismissal of the employee was fair.
On the question of such unauthorised possession being deserving of dismissal, the Court held that “It is difficult to imagine how everyone could be given a chance to be found at least once in unauthorized possession of company property before resorting to dismissal. Dismissal for a first instance of such misconduct was fair ..”
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