Woolworths (Pty)Ltd v CCMA & others[2011]ZALAC15;JA 30/10(26July2011)
Christine Masoleng, a customer service supervisor with 23 years’ service and a clean disciplinary record, was dismissed by Woolworths on 10 February 2010 for gross misconduct, having been found guilty of concealing merchandise without paying for it. At the Commission for Conciliation, Mediation & Arbitration (CCMA), her dismissal was found to be substantively unfair and she was reinstated retrospectively to her date of dismissal and without any loss of service benefits, although she was effectively only awarded 3 months’ backpay. Her reinstatement was also subject to a final written warning for unauthorised use of company property.
Woolworths took the arbitrator’s decision on review to the Labour Court, was unsuccessful, and then appealed to the Labour Appeal Court.
The misconduct charges against the employee were based on DVD footage captured from a surveillance camera installed at a strategic point within the workplace and covering the area around the employee’s desk. This footage was used as evidence of the employee’s misconduct. On the basis of this footage, the employee was charged and convicted of gross misconduct, in that she “concealed merchandise without paying for it, which resulted in a loss to the company”, in violation of the appellant’s disciplinary code. No clothing had subsequently been found on her, and witnesses’ evidence was premised virtually entirely on the DVD footage showing her hiding merchandise under her clothing.
The merchandise she allegedly concealed were basically “returns” or “second-grade” goods, which were “degraded" due to a number of reasons, including non- compliance with Woolworth’s quality standards or goods damaged or soiled and returned by customers. It was not in dispute that, in terms of Woolworth’s policy, these items would be disposed of in various ways; for example, by returning them to the manufacturers or suppliers, selling them to staff at a reduced price, or donating them to charity.
In her defence, the employee admitted having handled the items, namely a blouse and a belt, in the manner as shown on the DVD footage. However, she denied having committed any misconduct. Although she admitted that the blouse was Woolworth’s property, she said it was a “waste garment” which had “no value” and which she had taken in order to absorb sweat on her as it was hot in her office. As for the belt, she said it was her own, having come to work wearing it that morning. When she felt the heat in the office she had then taken it off and placed it somewhere in the office. When she had to go out for lunch, she took the belt, rolled it up and placed it under her clothes in her breast and then went out. When asked by the Commissioner why she had not openly carried the belt in her hand instead of putting it underneath her clothes, her answer was that she did not like to do so and that she simply “felt like putting it there”.
The arbitrator held that the employee’s version was not improbable and that Woolworth’s had failed to establish that the employee intended to conceal the blouse or had any dishonest intent – however, on the employee’s version she had used the blouse without Woolworth’s consent, which justified a final warning. Having regard to the belt, the arbitrator found it had not been proved that it belonged to Woolworths, even though it was of a type marketed by them.
The Labour Court seemed to consider only the question of sanction and rejected Woolworth’s review application. It appears from reading the Court’s review judgement, that the low value of the merchandise in question coupled with the employee’s long service and clean disciplinary record, played a decisive role in the decision not to overturn the arbitrator’s award.
The Labour Appeal Court (LAC) found that the judge in the Labour Court had erred by confining himself to a consideration of whether the arbitrator’s sanction was fair, as opposed to considering the wider issue of the arbitrator’s finding on the merits of the dispute. The LAC found that the arbitrator’s conclusion that the employee’s conduct, on the facts, only constituted ‘unauthorised use’ of Company property, was unreasonable. The LAC concluded that the employee’s version of events as outlined above was highly improbable, and found that the employee committed acts of gross misconduct involving gross dishonesty.
The LAC found that the DVD footage had established a prima facie case of concealment and dishonest intent, and the onus then shifted to the employee to provide an explanation for her actions. This she failed to do, and the LAC described her version as a “glaring and shameless fabrication.” The most probable inference that could be drawn from the DVD footage, was that the employee wrongfully concealed the
merchandise with dishonest intent.
In the circumstances and notwithstanding her long service, the LAC found that Woolworths was justified in its view that the trust relationship between it and the employee broke down irreparably. The LAC accordingly overturned the arbitrator’s award and found that the dismissal fair
How best would you classify the offense of what Christine Masoleng was accused of in the above case study?
a.
Negligence as a form of misconduct
b.
Internet and computer-related misconduct
c.
Breach of confidentiality
d.
Misconduct involving acts of dishonesty, unfair competition, and similar breaches of the duty of good faith
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The best classification of the offense Christine Masoleng was accused of in the above case study is:
d. Misconduct involving acts of dishonesty, unfair competition, and similar breaches of the duty of good faith.
This classification is appropriate because the case revolves around accusations of gross misconduct tied to concealment of merchandise without payment, which implies dishonest intent—essentially a breach of the trust expected in an employer-employee relationship.
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