What is the position where there is theft by an employee who cannot be identified by the employer? Is the employer entitled to demand the assistance of other employees to identify the culprit or can an employer dismiss all suspected employees if they decide to band together?
In SACCAWU obo Matabako & 19 others and Metro Great Octive (unreported CCMA case FS 1468-09 heard on 13 June 2009), 20 employees were dismissed after certain stolen items were found in the female change room. The employer decided to dismiss all the female employees who used the change room as they could not determine who the guilty parties were.
The concept of derivative misconduct was considered in FAWU v Amalgamated Beverage Industries (1994) 15 ILJ 1057 (LAC) where the LAC held that employers may expect their employees to assist in identifying culprits. In Chauke v Lee Service Centre (1998) 19 ILJ 1441 (LAC), the LAC found that employees are guilty of misconduct where they remain mum about the identity of the culprits. An employee may be guilty of misconduct, if he is aware of the misconduct and yet remains silent. In NUM v Grogan (2007) 4 BLLR 289 (LC), the Court held that an employee must firstly be aware of the wrongdoing and must have, secondly, failed to take steps to help the employer acquire knowledge of the misconduct.
Turning to Matabako, the CCMA was satisfied that our law assists employers who face a predicament where employees committed misconduct but the identities of the culprits remain unknown. He stated however, that there are two values which must be balanced, namely that of the employer (who has the right to have his property respected) and the right of employees not to suffer unfair dismissal where they may not be aware of any wrongdoing but dismissed as a result of another's wrongdoing.
The CCMA held the dismissals as substantively unfair. The Commissioner stated that there was no evidence led by the employer that the employer had a serious problem with theft or losses. The employer had considered employing a female security guard but elected not to. This may have provided it with a viable alternative solution. Less drastic steps such as lie detectors, hiring an investigator or reporting the matter to the SAPS could have been taken. The Commissioner held that not all the employees had been aware that property was being stolen - a key requirement laid down in NUM v Grogan. The CCMA ordered the re-employment of the dismissed employees.
While one may appreciate that the CCMA arguably came to the right conclusion on the facts, its reliance on the criminal principle that a guilty person must rather go free than have an innocent person convicted is arguably misplaced in the employment relationship. Employers should take care though to consider less drastic measures before relying on derivative misconduct to dismiss employees.
Johan Botes, Director and
Deshni Naidoo, Candidate Attorney,