Just a spoonful of sugar | When guessing doesn’t pay

By David Short and Ciara Pillay

In a recent Labour Court decision, Shoprite Checkers (Pty) Ltd v Godfrey Makaloi and 2 Others, the complexities of workplace misconduct were brought into focus when a seemingly minor incident escalated into a legal battle. The case, which revolved around the alleged theft of a small quantity of sugar, highlights the importance of solid evidence and thorough investigation when dealing with accusations of employee misconduct.

The Employer, relying heavily on CCTV footage and inferential reasoning, sought to justify the dismissal of an employee, but ultimately failed to meet the legal standards required to prove theft. This case underscores the risks employers face when assumptions replace concrete evidence, and it serves as a reminder that even seemingly trivial incidents can have significant consequences in employment law.

The First Respondent (Employee) was employed by the Applicant as a baker at one of its Shoprite stores in Kimberly. The application involved the alleged theft of a spoon or two of sugar from its Bakery stock. The Employee was charged with serious misconduct, i.e., theft, where he allegedly stirred sugar into his warm drink on company time in an area which was not designated for the consumption of food or drink.

At the Arbitration, the Applicant relied exclusively on CCTV footage to prove its case, however, the footage failed to show the employee drinking his warm drink. The Applicant attempted to argue that the Employee had stolen sugar from the sugar reserved exclusively for use in producing baked goods. The Employee’s actions as alleged caused the Employer to link such actions to shrinkage of stock in the bakery.

At the internal disciplinary hearing, of the charges preferred against the Employee were among others, the consumption of company stock and not adhering to the policy relating to staff buying procedures. The Employee was dismissed whereafter he referred an unfair dismissal dispute to the CCMA. The Commissioner found that his dismissal was procedurally fair, but substantively unfair.

The Employee was charged with serious misconduct. He was alleged to have, between 17 and 22 October 2022, (1) consumed the Applicant’s stock, in an undesignated area; (2) his failure to follow staff buying procedures; and (3) which caused the Applicant’s stock shrinkage.

A bittersweet analysis

There was a practice at this particular Shoprite store to the effect that employees brought their own containers which were used to collect consumables such as tea, coffee, sugar and powdered milk all provided for by the Employer for consumption by them during the workday. These items would be kept in the employees’ individual lockers for their use as when required. On occasion, the Employee’s ration of sugar, etc. was kept in the bakery area where he worked and not in his locker. The legal question for determination by the Commissioner was whether the Employer had proved the allegations preferred against the Employee by reference only to the CCTV footage and inferential reasoning.

Mr. Beukes, the grocery manager, did not give an eyewitness account of the events which had taken place but merely gave an interpretation of that which had been captured on the CCTV camera in the bakery area, which the court found to be unhelpful. The court noted that there was no record of a stock-take having been conducted to demonstrate that sugar had indeed been taken from the bakery stock for uses other than producing bakery goods.  

The Employer was unable to demonstrate from the CCTV footage that the Employee had in fact consumed the beverage into which sugar had been stirred. The Commissioner’s award of re-instatement with retrospective effect was confirmed largely on the basis that the Employer had failed to satisfy the onus of proof resting on it to prove that the dismissal of the Employee was fair.

Key takeaways

Employers need to conduct thorough investigations and produce credible evidence which proves an employee’s guilt in respect of all the elements of misconduct according to the threshold used in civil matters i.e., a balance of probabilities.

The balance of probabilities test does not imply that an Employer can fill in gaps which may exist in its evidence through inferential reasoning but needs to present permissible and credible evidence which demonstrates that the probabilities weigh in favour of finding the employee guilty of the misconduct with which he or she is charged. There must on the facts be no other reasonable probability other than that the employee committed the alleged misconduct.

Employers may only rely exclusively on CCTV footage where such footage reliably indicates that the employee is guilty of all the elements of the misconduct he or she is charged with and cannot amplify such footage with inferential reasoning.

Although the court did not consider this, it is important to note that an Employer using CCTV footage should also comply with the rules of evidence applicable to the use of films/video footage. 

Lastly, the Court did not pronounce on the impact of petty theft on the trust relationship between an Employer and Employee, with the result that the decision in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC) relating to petty theft which creates a breakdown in the trust relationship remains the legal position. It is, therefore, important for employees to refrain from petty theft in the workplace and not use the Employee’s victory in the above matter as a license to indulge in petty theft from their employers.