29 May 2023
Employers have a common law duty to maintain discipline in the workplace. However, this duty does not come without its challenges. An example would be, what do you do where you (the employer) suspect that employees are collectively involved in committing misconduct? How far do you go with the investigations and what should your investigations reveal to ensure that the employer is successful at the CCMA, as well as mitigate further risks.
Recently the Labour Appeal Court, in the matter of South African Commercial Catering and Allied Workers Union and Others v Makgopela and Others (JA38/2021)  ZALAC 8 (14 March 2023), examined this. The matter concerns the dismissal of a group of employees due to shrinkages at their stores over a period of at least three months in 2016.
Following the decision of the arbitrator, who found that the dismissal of the 12 employees was substantively fair, the employers took the matter on review. The court on review found that the arbitration award fell within the bounds of reasonableness required from the arbitrator and dismissed the review application.
The matter was then appealed by the Appellant employees. It was found by the Court on appeal that the matter related to collective workplace misconduct. It was further found that no individual employees were identified as having committed particular acts of misconduct. The Court set out the principles under which to analyse the matter. There are four forms of collective misconduct namely: common purpose, team misconduct, derivative misconduct and operational requirements dismissals for collective misconduct.
The employer at arbitration had relied on team misconduct as an explanation as to how the employees were dismissed. Team misconduct requires that it be proven that the employee, as a member of a team, had culpably failed to ensure that the team complied with the rule or attained the performance standard set out by the employer to prevent misconduct.
The Court further stated that to find team misconduct, the employer needed to either rely on evidence of the failure of the employees (as the members of a team), or on circumstantial evidence to show that this was the most probable inference that could be drawn from the facts or on the doctrine of common purpose.
The Court made mention of direct evidence of, for example CCTV cameras being available to the employer but not being used by the employer to identify participation by the employee to the shrinkages. This is to say, on reliance on team misconduct, had the employees been identified and there being direct evidence to this effect, there could have been sufficient evidence to render the dismissal fair.
There also lacked circumstantial evidence to show that the most probable inference that could be drawn is there was team misconduct on the employees. For example, had there been distinguishable measures and controls introduced to prevent shrinkages, an attempt at an investigation by the employer to prove those involved in the loss of stock or that the employees had been reasonably aware of stock being lost.
The Court found that a reliance on generalised facts, arising from a scant investigation into the alleged misconduct, does not provide sufficient basis on which to infer that collective responsibility exists. South African law does not allow a determination of guilt simply by association. The dismissal was found to be substantively unfair and the Court on Appeal ordered re-instatement of the employees with back-pay.
When employers prepare disciplinary charges, they should ensure that the charges first relate to the individual employee’s involvement (even though the offence might have been collective misconduct). Further, that the employer undertakes in diligent and detailed investigations (where the role of each employee is clear in the commission of the offence) and that at least there is direct evidence that supports the commission of the offence.
Contact our offices to ensure you are adequately prepared in Disciplinary matters, the drafting of charges is the first misstep.
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