Employers - is "team misconduct" grounds for dismissal?

Here’s an unhappy scenario for any employer –
 
 

• You are losing a fortune in stock shrinkage,

• You can prove that the losses stem from theft by a particular group of employees,

• But you cannot prove that each member of the group is individually responsible.

 
 
What can you do?
 
A recent Labour Court case illustrates:
 
 
Fast food filching – a team effort
 

1. A fast food outlet was suffering large (up to R120 000 per month) stock losses, always when one particular shift, comprising cooks, “expediters” and cashiers, was on duty. 

1. Security and stock handling measures failed to stem the losses.

1. Several warnings were issued to staff.  They were told that they had a duty to report theft, that the stock shrinkage was “intolerable”, that there was a “zero tolerance” policy to theft and that disciplinary action would be taken if the losses continued.  These warnings bore no fruit.

1. Disciplinary enquiries were held and the whole team – all 11 members of the shift – was dismissed for theft.

1. The thefts stopped immediately.

1. The dismissed employees took the matter to the CCMA where an arbitrator, finding the dismissals to have been unfair, awarded 6 months’ compensation to each of them.

1. On review, the Labour Court set aside this ruling and held the dismissals to have been substantively fair.

 
The law and collective liability
 
This was, held the Court, a case of “team misconduct”, and accordingly “there is no need to prove individual guilt. It is sufficient that the employee is a member of the team, a team the members of which have individually failed to ensure that the team meets its obligations, in our given case, to ensure that there is no stock loss.”
 
Note that similar principles apply to cases of “collective misconduct”, “derivative misconduct” and “common cause purpose” – but as always, our labour laws being as complex as they are, and with substantial penalties awaiting the unwary employer, it is always worth taking full advice on your particular circumstances.

Bisset Boehmke McBlain Attorneys

April 2015