Theft – the requirements for dismissal by Johanette Rheeder
Every employer will probably, at some stage or another, be faced with theft in its workplace. Due to the fact that theft is a dishonesty offence, we dismiss those employees guilty of theft, no matter the value of the item stolen and in most cases, factors in mitigation were not enough to tip the scale away from dismissal, as honesty goes to the heart of the relationship and theft or dishonesty destroys the trust between employers and employees.
Two recent Labour Appeal Court cases again looked at the requirements for dismissal in the case of theft. Incidentally, both of them are between the same parties and were heard during 2008.
The first case was that of Shoprite Checkers (Pty) Ltd v CCMA & others  12 BLLR 1211 (LAC) (The first Shoprite case). The importance of this case is the fact that the LAC took factors in mitigation, such as the employee’s years of service and a clean record into consideration. The employee had been captured on the store video camera on three separate occasions eating in areas in which such activity was prohibited. He was subsequently charged with misconduct, found guilty and dismissed. It was common cause that the monetary value of that which was consumed was unknown, but not of a high value. The employee had 30 years of service and was a first offender. In this case, the matter was referred back for arbitration before the CCMA on more than one occasion and the employee was re-instated more than once.
The issue that the LAC concentrated on was the fact that the employee was re-instated but not with back pay. On review before the LAC, Zondo JP held that he accepts that the matter cannot simply be about monetary value of the food that the employee ate, but about a principle and the real problem of shrinkage that Shoprite and other similar businesses face every day. He found that he is not ignoring any of this, but that he, nevertheless, when all the relevant circumstances are taken into account, is of the opinion that a reasonable decision-maker could not, in the circumstances of this case, have concluded that an employee who had a clean disciplinary record and had 30 years of service should, in addition to getting a ‘severe final warning’ for this type of conduct, also forfeit about R33 000 in back pay for eating food that may well have cost less than R20. A reasonable decision-maker would, according to Zondo JP, not have sought to impose any penalty in addition to the ‘severe final warning.’”
The LAC also agreed that dismissal would have been inappropriate.
The second theft case was that of Shoprite Checkers (Pty) Ltd v CCMA & others  9 BLLR 838 (LAC), reported on 20 June 2008. (the Second Shoprite case)
The appellant, Shoprite, dismissed the respondent employee after he was captured on videotape on three occasions eating pap and bread taken from the delicatessen at the store at which he worked. The CCMA reinstated him on the basis that theft was not proven. On review, the Labour Court found that the sanction was too severe and ordered re-instatement with a final written warning.
The matter went on appeal, as they often do, before DM Davis, Judge of Appeal; LP Tlaletsi and SK Ndlovu, Acting Judges of Appeal. On appeal, the legal representative of the employee conceded that the employee was guilty of theft. The LAC then looked at the issue of the sanction.
The LAC took into consideration that, in the present case, the uncontested evidence revealed that, during October 2000, the appellant’s store in Louis Trichardt lost 2.95% of turnover due to shrinkage which equated to a loss of some R144 000. Employees were aware of this. It also looked at the first Shoprite case and distinguished itself form that case.
Although the first Shoprite case appears to adopt a different approach to theft, the judges in the second Shoprite case distinguished itself from the first case on the basis of the years of service, clean record and the fact that the employee in the second case was clearly dishonest in his reasons given to the Court. In the second Shoprite case the evidence also clearly indicated that the trust relationship was irretrievably broken down. The dismissal was found to have been fair.
Although the LAC in both cases, did not deviate directly from the principle that theft causes an irretrievable breakdown, employers should make sure that there is enough evidence presented in such cases to show a breakdown in the trust relationship and if there are mitigating circumstances present, why those mitigating circumstances would or could not result in a lesser sanction than dismissal. As in any other case that warrants dismissal, it is for the employer to prove as much.
For more information contact Johanette Rheeder on firstname.lastname@example.org
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