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Article 5/2024

LabourEdge

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.
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?