Article 45/2022

FEDCRAW v Smit Trading (2001) 22 ILJ 1945 (Arb) introduced the concept of team misconduct into the South African labour law environment.  This approach was subsequently followed in Foschini Group v Maidi and Others (2010) 21 (3) SALLR 1 (LAC); (2010) 31 ILJ 1787 (LAC).  Subsequently, the CCMA, on a consistent basis, followed such approach (e.g. Lekoko and Four Others v The Foschini Group (2013) 34 ILJ 2978 (CCMA); Miyen v Blue Falcon (2020) 41 ILJ 2205 (CCMA); Tswaane v City Express Stores (2020) 41 ILJ 2231 (CCMA).  In terms of the principles extracted from the aforesaid judgments and awards, what are the different steps to be identified when dealing with team misconduct?

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Step 1: application of item 7 of Schedule 8 of the LRA

The employer bears the onus of proving:

  • that the stock loss norm is valid or reasonable
  • that 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: required proof of the existence of stock loss

Evidence is required in respect of, inter alia, the following:

  • the system utilised to control stock
  • the good working order of the system at all relevant times
  • the lack of discrepancies in respect of banking
  • the correct capturing of all despatched and received stock
  • verification of stock loss figures
  • the absence of administrative errors

Supporting documentation will also be required, including the following:

  • a summary of cyclical recorded stock loss results for the unit
  • a summary of stock losses per department, reflecting physical stocktake, bin cards, theoretical stock, etc
  • a schedule of comparative stocktake results of other units
  • a summary of daily transactions for the relevant period

Step 3: determining the consequences of the presence or absence of the required proof for the existence of stock losses

If the required proof is established, the matter is to proceed to step 4.  If the required proof is not established, no further enquiry can take place in terms of the principles of team misconduct and, should the employer dismiss such employees despite the absence of such required proof, the dismissals would be substantively unfair.

Step 4: a determination as to whether or not the employer has established the requirements of team misconduct

Such requirements are the following:

  • each employee is to be individually responsible for ensuring compliance by the group
  • the group failed to comply with the stock loss norm
  • the employer is unable to identify employee(s) who has/have breached the stock loss norm
  • the employer is unable to identify external factors responsible for the non-compliance (in the Tswaane award (supra), the CCMA incorrectly held that team misconduct is applicable, despite the fact that external factors were responsible for such non-compliance, e.g. the stock was not properly captured on the relevant system, there were attempts to cover up the stock loss and the school wear was not correctly counted)

Step 5: determining the consequences of compliance or non-compliance with the elements of team misconduct

If the requirements of team misconduct have been established, then:

  • there is no need to prove individual guilt
  • the enquiry is to proceed to determine whether or not dismissal is the appropriate penalty – if dismissal is the appropriate penalty, this will result in the dismissal being both substantively and procedurally fair and, if dismissal is not the appropriate penalty, this could result in the dismissal being procedurally fair but substantively unfair

On the other hand, if the requirements for team misconduct have not been established, the dismissal will, in all probability, be both substantively and procedurally unfair.

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.