Company sugar leaves bitter taste after court, CCMA wade in on unfair dismissal matters

Stirring a hot beverage in an area undesignated for food and beverages, and a misplaced bag of sugar, landed two workers in hot water with their employers. The dismissals were challenged at the Commission for Conciliation, Mediation and Arbitration (CCMA).

In the first matter, brought before the Labour Court in Gqeberha, Shoprite Checkers sought to set aside an arbitral award made by the CCMA. 

The employee, a baker at a Shoprite store in Kimberley, had been dismissed after facing charges of serious misconduct relating to CCTV footage that showed him stirring what appeared to be sugar into his beverage during his shift in a restricted area. While the video didn’t capture him drinking the beverage, management concluded that he had consumed it — and used company sugar.

The baker had worked for the company since 1991, with a clean record of service.

After being dismissed following an internal disciplinary hearing, he referred the matter to the CCMA, which found that he was procedurally fairly dismissed, but that the dismissal was substantially unfair because Shoprite had not proven that the worker had consumed the beverage in the undesignated area. 

His award made provision for the calculation of back-pay of about three months and two weeks, and reinstatement to his previous position with effect from 10 January 2023. 

Shoprite, in taking the matter to the Labour Court, had complained that the CCMA’s decision was an unreasonable ruling based on the available evidence.

The employee admitted that the person depicted in the video was him and that the substance stirred into that warm drink was sugar, but made no concession that he drank the beverage or consumed any company stock.

Furthermore, the judge noted that employees at this Shoprite store may request provisions from the cash office department, or bring their own supplies of tea, coffee, sugar and powdered milk, which can be kept in their lockers.

This employee had kept their provision of sugar inside the store within the bakery area, where the employer’s own large canister of sugar is kept. It was impossible to determine the source of the sugar used in the employee’s drink. 

The second matter, brought by Famous Brands against the CCMA and the National Union of Public Service and Allied Workers (representing Sebenzile Mabengu), relates to a lost bag of sugar. 

Famous Brands sought to set aside the CCMA award and either substitute it with another decision or send the dispute back to the CCMA for a fresh hearing before a different commissioner.

The employee worked as a van assistant for Famous Brands. After the company lost a 12,5kg bag of branded sugar in a delivery of dough mix, it investigated the incident, interviewed employees and found misconduct by the van assistant and other employees. 

The van assistant, who was charged with one count of misappropriating the sugar, was dismissed. He had worked for the group since 1990. He was also a shop steward and had an unblemished record of employment. The employer considered his actions even more of a betrayal due to his long service and union leadership role, arguing it sustained huge losses because of stock shrinkage. It also emphasised that honesty is a virtue that cannot be taught to someone who has already made a mistake. 

On a routine delivery to various customers, the warehouse controller, while on the telephone, noticed the forklift driver had placed a Huletts-branded bag on the dough-mix pallet, which he found odd. He made a note of it, backed by photographic evidence. 

The van assistant claimed he didn’t notice the sugar, which was hidden from view by the wall of dough mix.

But the forklift driver, during the investigation, implicated the van assistant and the rest of his delivery crew in the loss of the sugar. He was also dismissed after admitting his role in the sugar theft.

After conciliation between the parties failed, it was arbitrated by the CCMA, which found the employer couldn’t prove that the employee — who was not the only crew member in that truck — was responsible for the sugar’s loss; that it was substantially unfair and that the worker must be reinstated. 

The applicant argued that the arbitrator made significant mistakes, misunderstood the case, and made incorrect legal decisions.

The judge agreed, ruling that the dismissal was fair. DM