Employershave a common law duty to maintain discipline in the workplace. However, this dutydoes not come without its challenges. An example would be, what do you do whereyou (the employer) suspect that employees are collectively involved incommitting misconduct? How far do you go with the investigations and whatshould your investigations reveal to ensure that the employer is successful atthe CCMA, as well as mitigate further risks.
Recentlythe Labour Appeal Court, in the matter of South African Commercial Catering andAllied Workers Union and Others v Makgopela and Others (JA38/2021)  ZALAC8 (14 March 2023), examined this. The matter concerns the dismissal of a groupof employees due to shrinkages at their stores over a period of at least threemonths in 2016.
Followingthe decision of the arbitrator, who found that the dismissal of the 12employees was substantively fair, the employers took the matter on review. Thecourt on review found that the arbitration award fell within the bounds of reasonablenessrequired from the arbitrator and dismissed the review application.
Thematter was then appealed by the Appellant employees. It was found by the Courton appeal that the matter related to collective workplace misconduct. It wasfurther found that no individual employees were identified as having committedparticular acts of misconduct. The Court set out the principles under which toanalyse the matter. There are four forms of collective misconduct namely:common purpose, team misconduct, derivative misconduct and operationalrequirements dismissals for collective misconduct.
Theemployer at arbitration had relied on team misconduct as an explanation as tohow the employees were dismissed. Team misconduct requires that it be proventhat the employee, as a member of a team, had culpably failed to ensure thatthe team complied with the rule or attained the performance standard set out bythe employer to prevent misconduct.
TheCourt further stated that to find team misconduct, the employer needed toeither rely on evidence of the failure of the employees (as the members of ateam), or on circumstantial evidence to show that this was the most probableinference that could be drawn from the facts or on the doctrine of commonpurpose.
TheCourt made mention of direct evidence of, for example CCTV cameras beingavailable to the employer but not being used by the employer to identify participation by the employee to theshrinkages. This is to say, on reliance on team misconduct, had the employeesbeen identified and there being direct evidence to this effect, there couldhave been sufficient evidence to render the dismissal fair.
Therealso lacked circumstantial evidence to show that the most probable inferencethat could be drawn is there was team misconduct on the employees. For example,had there been distinguishable measures and controls introduced to preventshrinkages, an attempt at an investigation by the employer to prove thoseinvolved in the loss of stock or that the employees had been reasonably aware ofstock being lost.
TheCourt found that a reliance on generalised facts, arising from a scantinvestigation into the alleged misconduct, does not provide sufficient basis onwhich to infer that collective responsibility exists. South African law doesnot allow a determination of guilt simply by association. The dismissal wasfound to be substantively unfair and the Court on Appeal ordered re-instatementof the employees with back-pay.
Whenemployers prepare disciplinary charges, they should ensure that the chargesfirst relate to the individual employee’s involvement (even though the offencemight have been collective misconduct). Further, that the employer undertakesin diligent and detailed investigations (where the role of each employee isclear in the commission of the offence) and that at least there is directevidence that supports the commission of the offence.
Contactour offices to ensure you are adequately prepared in Disciplinary matters, thedrafting of charges is the first misstep.
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29 May 2023