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.