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A cautious approach towards the application of team misconduct - South African Commercial Catering and Allied Workers Union v Makgopela 2023 44 ILJ 1229 (LAC)
S'celo W Sibiya
Abstract
The reality faced by the labour market is that employees are prone to committing acts of misconduct at the workplace from time to time. In case of an unexplained stock loss at the workplace, however, it becomes difficult for the employer to establish a prima facie case that any particular individual employee was involved in the commission of the offence before disciplinary action can be validly taken. Consequently, the notion of team misconduct was introduced to deal with the common challenge faced by an employer who has sufficient proof of stock loss but is unable to identify the perpetrators of the misconduct. Accordingly, the evidential difficulty posed by dismissal for misconduct where a transgression has been committed by a group of employees has given rise to the application of team misconduct.
In this regard the recent Labour Appeal Court case in South African Commercial Catering and Allied Workers Union v Makgopela 2023 44 ILJ 1229 (LAC) has contributed to the elucidation of the notion of team misconduct in the workplace. The learned Savage AJA maintained that the notion of a person’s being guilty by association has no place in our law. It follows that in order for an employer to safely rely on team misconduct a factual basis must be established to infer that an entire group of employees was indivisibly culpable as members of a team for failing to ensure compliance with the employer's rule.
The Labour Appeal Court can be lauded for precisely evaluating the evidence presented and all the relevant factors which exonerated the applicants from the charge of team misconduct. This case note calls for a critical analysis of the impact of shrinkage in the retail sector, the application of the notion of team misconduct, practical methods for securing evidence in team misconduct cases, as well as the cautionary approach adopted by Savage AJA in the Labour Appeal Court judgement.
