Dismissal as a sanction for theft of an item of insignificant value.....is it fair?
Let's say an employee has been caught stealing a bar of chocolate valued at R10.He is dismissed after a fair hearing. Is that sanction fair bearing in mind what schedule 8 tells us about the progressiveness of discipline in the workplace in the case of misconduct and dismissal being the last resort?
Commissioners, I am sure must be wrestling with this dilemma as did one in the case of Devel Switchboards (Pty) Limited v Metal and Engineering Industries Bargaining Council and Others (2015) ZALCJHB 254 (7.8.2015) where he found the employee had been procedurally unfairly dismissed and ordered reinstatement with pay.
The decision was overturned on review .The employer, in this case, had been experiencing theft of copper wire and fairly large volumes.
The court pointed out that our courts have laid down intelligible principles which should not be departed from which state that once a person has been proven to be dishonest, his otherwise unblemished record and length of service will have a minimal effect as mitigating factors as notwithstanding the amount involved, it is unlikely to restore the trust relationship that is irretrievably broken down. As cruel as it may sound, the reason for this is that there is a high premium placed on honesty as cumulatively every minor theft could impact on the sustainability of the employer's enterprise and it could impact on job losses.
The court, in case, noted that any shift away from the principles will fuel the perception that our labour laws are too inflexible.
At para (51) the court said that employees should be encouraged to avoid dishonest conduct and with levels of dishonesty being inordinately high in the workplace, they ought to be made aware that such conduct could lead to closure of the business or , alternatively job losses and in the current economic downtrend many enterprises are finding it tough to stay open.
The decision makes us all reflect the imperative of employers and employees engaging in a joint relationship in their own best interest.
Saber Ahmed Jazbhay
Labour Law Practitioner
Part Time Commisioner