Particulars of proceedings and representation
1. Ms NC Fiphaza (the “applicant”) referred a dispute to the CCMA alleging she had been dismissed unfairly by Overine 47 CC t/a Mugg & Bean Stellenbosch Square (the “respondent”). The matter was set down for con/arb on 20 August 2009. The applicant appeared in person. Mr Pieter Schoeman, a member of the close corporation, appeared on behalf of the respondent. The matter could not be resolved during conciliation and proceeded to arbitration. The arbitration proceedings were recorded digitally. Mr M Ngondo was the interpreter.
The issue in dispute
2. It must be determined whether the applicant’s dismissal was procedurally and substantively fair.
The background to the dispute
3. The applicant started working for the respondent in September 2007. She was dismissed on 23 July 2009 for theft and unauthorised possession of company property. At the time of her dismissal she was a kitchen assistant earning a salary of R1600 per month.
Summary of evidence and argument
4. Mr Pieter Schoeman and Ms Jo-Lize van Zyl testified on behalf of the respondent. The applicant testified and did not call any witnesses.
5. Mr Schoeman testified he is the restaurant manager. He took over the business in May 2009. Shortly thereafter, he had a general meeting with all staff members where the rules relating to theft and the unauthorised possession of company property were reconfirmed. Some time thereafter he caught a staff member stealing chickens. The South African Police Services were called to search staff members and some of them were found to be in unauthorised possession of company property. The guilty staff members were dismissed. Following this incident, another staff meeting took place where the rules were reiterated.
6. Staff members are not allowed to consume any of the respondent’s food and if they do, it is treated as theft. Several rules have been formulated to ensure compliance, for instance staff members may not eat in the kitchen, they are not allowed to eat any food that is returned from the restaurant, they may not eat food that they prepare, all waste must be thrown away and they may not eat their own food between 12pm and 2pm. A notice reminding staff members of these rules are displayed in the kitchen. Mr Schoeman explained the rule that all waste must be thrown away, serves the purpose of preventing staff from wasting or spoiling food in an attempt to consume it or to take it home. All the aforegoing measures are put in place to prevent theft, wastage and to keep costs down.
7. Staff members work in two shifts. The early shift starts at 8am on a Saturday and ends at 2.30pm. The second shift starts at 10am and ends at 5pm. Staff bring their own food to work and that may take breaks at any time before 12pm and after 2pm as long as there are enough staff in the kitchen to ensure that food goes out in time. They arrange break times between themselves and breaks would normally be taken after the second shift starts because there are more staff then.
8. The applicant was dismissed after she was caught eating from the flat top grill. The incident took place on Saturday, 18 July 2009. Mr Schoeman was not on duty that weekend and Ms Van Zyl reported it to him on the Monday when he returned to work after the weekend.
9. The applicant was suspended and given a notice of disciplinary hearing on 20 July 2009 at 3.50pm. The hearing took place on 23 July 2009. The notice of disciplinary hearing states the date, time and venue of the hearing and sets out the applicant’s rights, for instance that she may be represented by a co-employee, that she may state her case, that she may call witnesses, that she is allowed an interpreter, that she will be given the opportunity to present mitigating factors and that she will be informed of the outcome of the hearing in writing.
10. The disciplinary hearing took place on 23 July 2009 from 9am – 11am. Mr Schoeman was the chairperson and Ms Van Zyl was the initiator. Mr Schoeman asked the applicant whether she wants a representative and she declined. She also declined an interpreter and confirmed she was comfortable with the hearing being conducted in English. The applicant confirmed she received a copy of the notice of the disciplinary hearing and that her rights were explained to her and that she had sufficient time to prepare. Mr Schoeman then proceeded to clarify the alleged offence and the applicant pleaded guilty. Mr Schoeman decided to hear the evidence despite the guilty plea in order to give the applicant the benefit of the doubt. Ms Van Zyl explained how she saw the applicant eating from the flat top and she called two witnesses from the kitchen to explain how they understood the workplace rules. The applicant admitted she had eaten bacon from the flat top, but said she did not have time to eat anything on that day as it was busy and she was unable to take a break and the bacon she ate was crispy. The applicant also explained she saw the warning Ms Van Zyl had called up on the computer and she understood that to be the end of the process. She admitted a warning was not handed to her.
11. Mr Schoeman found the applicant guilty of theft and unauthorised possession of company property. Before he decided on the sanction he heard mitigating factors from the applicant. She said the bacon was crispy, she was sorry and she asked for forgiveness. Mr Schoeman regarded the fact that the applicant had been given a verbal warning for leaving the heater on as an aggravating factor.
12. The respondent’s employee handbook prescribes dismissal for a first offence for theft, unauthorised possession of company property and related offences. The applicant knew the rule well and she did not act in the company’s interest. Mr Schoeman decided a sanction of dismissal without notice was appropriate.
13. Ms Van Zyl is employed as the front-of-house manager. She started working for the respondent on 6 July 2009. Upon her appointment, Mr Schoeman told her she did not have the authority to hire and fire, but she could issue warnings to staff members.
14. She testified that on Saturday, 18 July 2009 at approximately 1pm she went to the kitchen to check on food that was taking long. When she came around the corner, she saw the applicant taking something from the grill and putting it in her mouth. When the applicant saw Ms Van Zyl, she turned her back to her. Ms Van Zyl asked her what she was eating and she held up a piece of prepared bacon. Ms Van Zyl told the other manager on duty of the incident and he told her to issue a warning.
15. Ms Van Zyl went upstairs to the office where she pulled up the template for a warning on the computer. She typed in the applicant’s name and when she had to fill in the offence she paged through the employee handbook where she noticed the transgression fell under the category of theft and dismissal for a first offence was prescribed. She realised a warning would not be appropriate. The applicant came in while she was busy with this and apologised to her. She told Ms Van Zyl she did not think someone would come around the corner so quickly and that is why she ate the bacon. The applicant noticed the warning on the computer. Ms Van Zyl showed her the employee handbook that prescribed a dismissal for a first offence. The applicant pleaded with Ms Van Zyl not to tell Mr Schoeman. Ms Van Zyl told her she could not issue the warning in light of the prescribed sanction and she was obliged to report the incident to Mr Schoeman. She closed the template on the computer and did not hand anything to the applicant. She reported the incident to Mr Schoeman on the Monday upon his return to work.
16. It was unusually busy on the day of the incident, but it died down at approximately 11am and then got busy again at 12:30pm. She did not suspend the applicant as she did not have the authority to do so.
17. The applicant testified she did eat bacon from the flat top, but it was crispy. She was hungry as it was busy that day and she was not able to take a break. When she went to the office to apologise to Ms Van Zyl she saw the warning and thought is was the end of the matter. Ms Van Zyl accepted her apology and she also apologised to the other manager who said if Ms Van Zyl accepted her apology there was nothing he could do. She believes it was unfair of the respondent to have convened a disciplinary hearing as she was given a warning.
18. On the Sunday, nothing was mentioned and on Monday the applicant worked as normal. She was called to the office at 3:50pm where Mr Schoeman asked her about the incident on the Saturday. This came as a surprise to the applicant as she thought everything had been sorted out. She told him what happened and Mr Schoeman said there would be disciplinary hearing. She was given a notice of a disciplinary hearing and was suspended. The hearing took place on the Thursday. The applicant conceded she transgressed the workplace rule that staff members are not allowed to eat the respondent’s food.
Analysis of the evidence and argument
19. In terms of section 188 of the Labour Relations Act 66 of 1995, as amended (“the LRA”) the onus rests on the respondent to prove the procedural and the substantive fairness of the applicant’s dismissal on a balance of probabilities.
20. The applicant agrees she transgressed a workplace rule by eating bacon from the flat top grill. In mitigation, she explained the bacon was crispy (implying that it could not served to customers) and she was hungry as she did not take a break that morning. She also disputes the fairness of the her dismissal as she was given a warning by Ms Van Zyl on the day.
21. I shall deal with substantive fairness first. The respondent led evidence about the workplace rules relating to theft and the reasons for the rules were explained. Eating the respondent’s food is seen as theft and is strictly prohibited. The same applies to spoiled food. The respondent’s employee handbook prescribes dismissal as sanction for a first offence. Although the employee disputed she was given a copy of the employee handbook, she did not dispute the existence of the rule and she admitted she was aware of it.
22. I am satisfied the respondent proved the workplace rule prohibiting staff members from eating the respondent’s food exists, that the rule is reasonable, that the employee was aware of the rule and that she transgressed it.
23. It is generally accepted that dismissal is an appropriate sanction for theft as it breaks down the trust relationship between employer and employee, irrespective of the value of the item stolen. See Central News Agency (Pty) Ltd v Commercial Catering & Allied Workers Union & another (1991) 12 ILJ 340 (LAC) and Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC).
24. It is also generally accepted that employers may have an interest in preventing the theft of small items and that controlling measures to prevent this must be adhered to strictly. If all the respondent’s staff members consumed only a small portion of food, it would cause huge losses to the business as a whole. Mr Schoeman also explained staff members are not allowed to consume or take spoiled food as this would give them an incentive to spoil food in order to eat it or to take it home and that would lead to losses for the business. The applicant’s explanation that the bacon was crispy therefore does not justify her eating it. The respondent disputed that the applicant would not have been able to take a break all morning, but Mr Schoeman conceded that this aspect was not investigated further. Ms Van Zyl testified that it was exceptionally busy on the day, but it died down between 11am and 12.30pm. If the applicant’s hunger is accepted as an justification for breaking the rule, the rule itself would be futile. The applicant could have made special arrangements with her managers if she was for some reason not afforded a break by the other staff members as is the custom.
25. It may appear as if dismissal for eating bacon from the grill may be a harsh sanction, but given the business interests of the respondent and the reasons for the existence of the rule I find that the offence caused the trust relationship to have broken down irretrievably and that dismissal was a fair sanction.
26. Regarding the applicant’s allegation that she was given a warning on the day of the incident, there is no evidence to substantiate this. Ms Van Zyl was very clear in her testimony that she intended to issue a warning, but changed her mind after she perused the employee handbook. The applicant also agrees that she was not handed anything in writing. I therefore find the applicant was not given a warning for the offence.
27. Turning to procedural fairness, the respondent proved it followed a fair procedure as prescribed in Schedule 8 of the LRA before dismissing the applicant. She was notified of the charge, she was given the opportunity to prepare a case, to be represented, to call witnesses, to state a case and present mitigating factors. The applicant’s dismissal was therefore also procedurally fair.
Award
28. The applicant’s dismissal was procedurally and substantively fair and she is accordingly not entitled to any relief. (Back)
