An Apple a Day? Dishonesty and the Employer’s Onus in Dismissal Disputes

In the recent case of Compass Group Southern Africa (Pty) Ltd v van der Merwe N.O & Others (JR633-16, 9 February 2018) the employer had approached the Labour Court with a review application, seeking to review and set aside the findings of the Commissioner who had found the dismissal of the employee to be both procedurally and substantively unfair.

Written By of Cowan-Harper-Madikizela Attorneys

The employee, whose duties included storing and serving apples at a hospital, was caught in possession of several apples which she was carrying in a bag obtained from the hospital ward. Upon being confronted by her employer, the employee apologised and begged for forgiveness. The employee was found guilty of misconduct and dismissed by the employer.

The employee’s version at the enquiry, and subsequently the arbitration, was that she had bought the apples from a vendor and that she had taken them with her to work. While the vendor was not called as a witness at the disciplinary enquiry, at the arbitration he indicated that the employee had left the apples with him and that the employee had gone to collect a plastic bag to place them in. These were two mutually destructive versions which placed serious question marks over the employee’s defence.

It was common cause that the employee had access to apples on the day of the incident. The employee also conceded that the apples found in her possession were ‘strikingly similar’ to those that were served in the hospital ward.

The Court commented on the onus of an employer to prove that a dismissal was fair. It explained, with reference to Woolworths (Pty) Ltd v CCMA & Others (2011) 32 ILJ 2455 (LAC), that:-

“In an unfair dismissal case relating to misconduct, the ‘evidentiary burden’ starts with the employer but once the employer provides prima facie proof of the misconduct as alleged, the ‘evidentiary burden’ shifts to the employee to prove his own defence. If the employee then fails to put up a defence or fails to prove his defence, the employers [sic] prima facie proof of misconduct becomes conclusive proof and the employer has then discharged the ‘overall onus’ that always rested with it.”

The Court found that the employer had established a prima facie case of misappropriation of company property or dishonest conduct on the part of the employee and that therefore the employee was required to ‘prove to be honest what admittedly on its face looked dishonest’. The Court found that the employee clearly failed to do so and then had to consider whether her dismissal was fair.

The Court found that the employee had engaged in conduct which essentially amounted to theft, concocted an obviously dishonest defence, showed no real remorse and, finally, occupied a position of trust within the Company. The Court accepted that the Labour Appeal Court has in the past followed a strict approach in respect of dishonest conduct by employees, particularly for reasons related to the employer’s operational requirements. Importantly, the Court found that persistent theft of stock ‘places in jeopardy the security of employment of all employees’. The Court also found that there was no basis to find that the dismissal of the employee was procedurally unfair.

In the circumstances, the Court set aside the arbitration award and found that the dismissal of the employee had been both substantively and procedurally fair.

This judgment confirms that dishonesty in the workplace will usually result in dismissal. The Courts will not expect an employer to continue to employ an employee who has broken the trust relationship or engaged in conduct which has negatively impacted on that relationship.

Neil Coetzer

Neil Coetzer
Head of Employment

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