Application in terms of section 145 of the South African Labour Relations Act, 66 of 1995 (as amended)

Dismissal – Misconduct – “Team liability” – All members on particular shift in fast food outlet dismissed as massive shrinkage continued – Concept of “team liability” applicable and employer not required to prove individual guilt – Dismissal fair.

Editor’s Summary [Courtesy LexisNexis – BALR]

After the applicant discovered it was losing stock from one of its fast food outlets at an “astonishing” rate, the respondent employees were informed of the problem and that the applicant would adopt a zero tolerance approach to further shrinkage.

The applicant implemented a host of security measures, and introduced new stock handling procedures but was unable to lock refrigerators because of the nature of the business.

Losses continued at a rate the applicant claimed employees must have been aware of and that they knew who the culprits were.

The respondent employees, who were all employed on a particular shift, were suspended and summoned to a disciplinary inquiry. The respondent Commissioner ruled that the applicant failed to prove that the employees were responsible for the losses or that they would have been aware of the culprits and awarded each of them compensation equal to six months’ wages.

The applicant contended that the Commissioner had erred by holding that the concept of “team liability” on which it had relied was unclear and suggested the imposition of strict liability, and that it was not the most probable inference that each employee knew who the culprits were.

After restating the current test for review, the Court noted that the presiding officer of the disciplinary hearing had relied on the concept of “team liability”.

That concept, like the doctrine of common purpose and “derivative misconduct”, does not require proof of individual guilt in cases of mass misconduct; it is sufficient that each employee is a member of a team , the members of which failed to ensure that the team meets its obligations, in this case to ensure that there was no further stock loss.

It was common cause that the applicant had taken all possible measures to stem the shrinkage, and that the employees had been warned several times of the consequences of its continuation.

Since the employees had elected not to testify at the disciplinary hearing or in the arbitration proceedings, the applicant’s version was unchallenged.

The “team misconduct” approach was confirmed in Foschini Group v Maidi and others [2010] 7 BLLR 689 (LAC), the facts of which were indistinguishable. By holding to the contrary, the Commissioner had misconstrued the issue.

The award was set aside and the dismissals declared fair.


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