Article 5/2024

On what basis are the principles of team misconduct applicable where an employer attempts to hold a group of employees accountable when stock losses occur within the retail sector? This could easily also be applicable within the hospitability sector, dealing with the stock on a truck, warehousing, etc – equally so applicable within the hospitality sector, dealing with stock loss within the transport sector, as well as stock loss within the warehousing environment, etc.

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The labour appeal court recently, in SACCAWU v Makgopela, the CCMA and Cashbuild (Pty) Ltd (2023) 34 SALLR 73 (LAC), confirmed and/or identified the following principles regulating collective misconduct in the above scenario on the basis of team misconduct:

Step 1

  • In terms of item 7 of Schedule 8 of the LRA, the employer must prove:
    • that the required stock loss norm is valid or reasonable (in the retail sector, it appears that the acceptable stock loss norm is 0.4% of sales)
    • the employees were aware or could reasonably be expected to have been aware of the stock loss norm
    • the stock loss norm has been applied consistently

Step 2

  • The employer is required to provide proof of the existence of the stock loss norm that will entail at least the following:
    • the good working order of the stock control system
    • the correct capturing of all despatched and received stock
    • the verification of stock loss figures
    • the absence of administrative errors
    • supporting documentation covering various aspects (e g physical stocktake, bin cards, theoretical stock, etc)

Step 3

  • If the required proof of existence of stock losses hurdle has been crossed, the employer is to proceed to step 4 – on the other hand, if the required hurdle of providing proof of the existence of stock losses has not been crossed and the employer, despite this, still proceeds, it runs the risk that the dismissals will, at least, be found to be substantively unfair.

Step 4

  • This is really the first time where the employer is provided with the opportunity to determine whether the elements of team misconduct have been met and such elements entail, inter alia, the following:
    • each employee in the selected team must be individually responsible for ensuring compliance by the group – therefore, the responsibility of individual employees must be indivisible
    • proof must exist that the group failed to comply with the stock loss norm
    • the employer must be unable to identify any specific employee(s) who has/have breached the required stock loss norm
    • the employer must also be unable to identify any external factor(s) responsible for the non-compliance
  • The elements dealing with team misconduct must either be proved by introducing direct evidence of the employees’ failure as members of the team to comply with the workplace rule or, alternatively, circumstantial evidence must be introduced that the most probable inference from the facts is the existence of team misconduct.
  • In the Cashbuild judgment, the labour appeal court also indicated that team misconduct can be proven by means of the application of the doctrine of common purpose.  With respect, we do not share this view – we are of the opinion that the principles of derivative misconduct are equally applicable to common purpose but not so applicable to team misconduct.

(See NUMSA v Dunlop Mixing and Technical Services (Pty) Ltd and Others 2019 (3) SALLR 2 (CC))

Step 5

  • If, in the above circumstances, there is compliance with the requirements of team misconduct, there is no need to prove individual guilt and the only remaining issue to be determined is whether or not dismissal is the appropriate penalty.
  • On the other hand, if compliance with the requirements of team misconduct has not been established, seeing that the substantive and procedural requirements in this regard are so interwoven, the real possibility exists that the dismissal will be found to be both substantively and procedurally unfair.

What is the viewpoint of the labour appeal court, as expressed in SA Municipal Workers’ Union obo Morwe v Tswaing Local Municipality and Another [2023] 2 BLLR 131 (LAC); (2022) 33 SALLR 60 (LAC)?

An employer set out its employees’ rights in disciplinary hearings in the applicable disciplinary code and incorporated same into their employment contracts.

What are the options available to an employee when an employer allegedly owes such employee monies in terms of a contract of employment?