In the Shoprite Checkers cases that ended up in the Supreme Court of Appeal (SCA) the judges had to consider these facts: the employee, Maake, had been captured on the store video camera on three separate occasions taking food and eating in areas in which such activity was prohibited. He was subsequently charged with misconduct, found guilty and dismissed. It was common cause that the monetary value of the food he ate was unknown, but of nominal value. The employee had 30 years of service and was a first offender.

These are sequence of events that took 8 years to end up at the SCA:

·         In the first arbitration on 3 April 2001, the CCMA commissioner found that Shoprite had not acted substantively or procedurally fairly and ordered Maake’s retrospective reinstatement to the date of his dismissal.

·         The matter was successfully referred to the Labour Court which found that the commissioner had committed gross misconduct in relation to her duties and sent the matter back to the CCMA to be heard afresh.

·         The second commissioner who heard the matter found that the employee had breached a company rule but that his actions did not warrant dismissal, and discipline in the workplace had to be progressively imposed. He took into account the employee’s clean long service record and reinstated him with a “severe” final written warning, valid for six months.

·         Back the matter went to the Labour Court to review the finding of the second commissioner! For technical reasons, that court found that the finding of the second commissioner was not open to review so that matter ended up in the Labour Appeal Court (LAC).

·         The LAC took factors in mitigation, such as the employee’s years of service and a clean record, into consideration. The court felt that if the matter were to go back to the CCMA a third time this could well be a miscarriage of justice. It therefore made an order reinstating the applicant with retrospective effect to the date of the applicant’s dismissal.

·         Shoprite sought leave to appeal to the SCA. That court agreed with the award of the second commissioner that Mr. Maake should be given a “severe” final written warning valid for six months and that he should be reinstated.

The Constitutional Court in Rustenburg Platinum Mines Ltd v CCMA 2007 (1) SA 576 (SCA) described the function of an arbitrator concerning misconduct:

“First, he or she has to determine whether or not misconduct was committed on which the employer’s decision to dismiss was based. This involves an enquiry into whether there was a workplace rule in existence and whether the employee breached that rule. This is a conventional process of factual adjudication in which a commissioner makes a determination on the issue of misconduct. This determination and the assessment of fairness … is not limited to what occurred at the internal disciplinary enquiry.”

In cases of theft before the CCMA, the employer needs to draw the Commissioner’s attention to the following, namely by:

• Proving that the employee knew that theft is prohibited and is a dismissible offence;
• Leading evidence to prove that the employee committed the misconduct for which s/he was charged;
• Mentioning that the problem of shrinkage in the employer’s industry has become commonplace, with the result that the issue is not about the monetary value of the item stolen, but about the operational requirements of the employer;
• Confirming that the rule against theft has been consistently applied in that workplace;
• Proving that the misconduct has destroyed the trust relationship (and so rendered a continued employment relationship intolerable);
• Demonstrating that the sanction of dismissal was appropriate in the circumstances.

Regarding the appropriateness of the sanction of dismissal, the judgment in the Rustenburg Platinum Mines case illustrates that Commissioners must take into account:

• the totality of circumstances;
• the importance of the rule that had been breached;
• why the employer imposed the sanction of dismissal, as he must take into account the basis of the employee’s challenge to the dismissal;
• the harm caused by the employee’s conduct;
• whether additional training and instruction may result in the employee not repeating the misconduct;
• the effect of the dismissal on the employee; and
• the employee’s service record.