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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.

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)?