Dismissed for R50! Fair?

A client recently dismissed an employee for dishonesty because the employee had gone to the on-site Deli and ordered from the cashier a large plate of chips, which he paid for.  At the orders counter he asked for and received a large plate of chips but also a hamburger and a pie.  He made no effort to pay for the extra goods and left the premises with the entire order: clearly a matter of dishonesty.

At his disciplinary enquiry the employee argued that the value of the goods was small (about R50 or US$6), that he had been employed for three years with a good performance record and he had no previous disciplinary warnings.  The employer weighed that against the employee being a “stores coordinator” in the company warehouse and having access to thousands of Rands worth of equipment.  In the employer’s opinion the level of trust had been irreparably destroyed and there was no longer the peace of mind associated with the employee’s duties and the known dishonesty.

The employee took the matter to the CCMA where it was agreed the only issue to be decided was whether the dismissal had been substantially fair.  The employee’s attorney argued the mitigating factors above and I argued for the substantive fairness.

I submitted that it was not the value of the goods that was of concern but the act of dishonesty and the relationship to the employee’s position. The Labour Appeal Court[1] has held that “dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, lie or act fraudulently”.  As such it is clear that dishonesty in a work relationship goes to the core of the very relationship and does damage to the trust relationship.  An employee has a duty to act in good faith towards the employer.

Again the Labour Appeal Court[2] has stated “It seems to me that the relationship between such 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”.

In Metcash the Labour Appeal Court[3] stated, “Theft is theft and does not become the less because of the size of the article stolen or misappropriated”. In that case the item stolen was one 250ml bottle of orange juice.

Finally De Beers where, once again the Labour Appeal Court[4], stated, “Dismissal is not an expression of moral outrage; much less is it an act of vengeance.  It is, or should be, a sensible operational response to risk management in the particular enterprise.  That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.”

What about the length of service and good record? In Leonard Dingler[5] the employee had a clean record of service over almost eight years and the dismissal was upheld despite the very low value of the goods stolen.  Similarly in Rustenburg[6] an employee of fifteen years was dismissed for attempting to unlawfully remove meatballs from the kitchen.  And in Lahee Park Club[7] the court confirmed the dismissal of the secretary of the sports club with an unblemished service record of seven years for writing off a subscription of a member valued at R60 [US$7] as a favour to such member.

It is clear that our courts place a high premium on honesty in the workplace. The CCMA agreed and the dismissal was ruled as substantially fair.

Despite the high premium on honesty it is important that disciplinary enquiry chairman carefully consider the facts of each matter on their own merits.  In an unreported case[8] the Labour Appeal Court considered that a dismissal was too severe where the employee consumed goods without authority but had thirty years unblemished service.