Dismissal for petty theft has always been a severe debatable issue in the labour field.
In the case of Nando’s Scottsville v CCMA and Others (D06/2019), an employee was dismissed for eating two individual slices of carrots from the bain-marie. The employee was charged with the following:
‘Unauthorised Consumption of Company Stock – in that they alleged that the employee was dishonest by consuming company stock being vegetables whilst on duty on the 08/04/2018 at Nando’s Scotville.’
The employee indicated during the disciplinary hearing and at the subsequent hearing at the CCMA that as a “front griller”, as he just “tested” the cooked carrots as they appeared to be frozen.
The employee further indicated that they would test the porridge that was cooked on a daily basis. The initiator, in his case, according to the employee, tastes the products of Nando’s, more, in particular, the porridge and rice.
The CCMA Commissioner found this was substantively unfair as there were no inherent dishonesty and ordered his reinstatement.
The Labour Court confirmed the same. The Judge stated that whilst he ate the carrots, he broke a rule, but he simply tasted them to determine whether they were suitable to be served. The employee did not consider his actions to break the law, as it appears he understood that it was for the unauthorised consumption of food items for personal pleasure.
Nando’s indicated that the employee was dishonest because he:
- Failed to notify management of the problems with the carrots;
- Failure to ring up the carrots;
- No supporting evidence was presented by the employee that the ovens had an alleged problem;
- The procedure of cooking vegetables prohibits an employee from tasting the food;
- The employee’s version of other employees who tasted the food was not put to the employer’s witnesses;
- The employee was a Nando’s Community Forum Representative, and therefore he was aware of the rule;
- The employee referred the case to the CCMA, claiming that the chairperson of the disciplinary hearing was biased. As no biasness was established during the arbitration, this ‘demonstrates the level of dishonesty adopted by the employee’.
Furthermore, Nando’s stated that the employee consumed company stock without authorisation or approval; therefore, the employee’s intent was proven as he deprived the employer of its property.
However, in a previous case, managers were confused over the company’s rules regarding the size of cool drink they could have with their lunch, and no disciplinary action was taken. Thus based on the employer’s treatment of its managers, it cannot be said that dishonesty is an inherent element of unauthorised consumption.
Nando’s lost its case mainly due to the following:
- The consequences for breaching the zero-tolerance policy were not well communicated;
- The policy in itself was not clearly communicated, and therefore room for misunderstandings and misinterpretations existed;
- Consistency was not applied in terms of the zero-tolerance policy;
- Nando’s did not place the employee’s reason for tasting the carrots in dispute;
- The employer failed to prove that the trust relationship was broken because the employee continued working for three months before being suspended and disciplinary action being taken.
Thus considering the above, an employee can still be dismissed for petty theft; however, the reasons for the breach should not be ignored, and the guidelines set out in schedule 8 of the Labour Relations Act should be followed to ensure that a dismissal would be the appropriate sanction in that specific circumstances.
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About The Author:
Diandra Botha started her career at SEESA in 2013. She is currently a Labour and BEE Legal Advisor at SEESA Nelspruit. She obtained her B. Com Law degree and is currently studying towards her LLB degree. Since being with SEESA, Diandra gained extensive knowledge in the fields of Labour, BEE and Consumer Protection and POPI.
References:
- Nando’s Scottsville v CCMA and Others (D06/2019) (delivered on 14 April 2022);
Item 7 in Schedule 8 (The code of Good Practice: Dismissal) of Labour Relations Act, 66 of 1995.