A teaspoon of sugar added in a warm cup of coffee or tea by a baker employed by Shoprite Checkers, was twice the subject of legal scrutiny – once before the CCMA and now before the Labour Court sitting in Gqebera.
Shoprite Checkers claimed the spoon of sugar came from their sugar stock for the bakery, thus “shrinking” their stock. Baker Godfrey Makaloi, who had a clean working record since the early 1990s, claimed it was his sugar.
Video footage of the sugar incident showed an unidentified man stirring sugar in a warm drink at work. Makaloi admitted he was the person stirring the drink, but he denied that the sugar came from the 25kg bag of sugar which was also stored in the room.
The video footage never depicted where the offending sugar came from, but the bakery manager deduced that it came from the bakery bag.
The result was that Makaloi faced a disciplinary hearing and he was fired. He took the matter to the CCMA, where he won his case. The commissioner ordered his reinstatement with backpay.
Unhappy with this finding, Shoprite Checkers took the matter to the Labour Court to overturn the CCMA’s decision, which this week ruled, once again, against the food giant company.
Shoprite Checkers asked the court to either order that the baker’s dismissal was substantively fair, or to remit the dispute back for reconsideration before another commissioner.
Makaloi was employed as a baker at one of Shoprite stores in Kimberley when the incident happened.
Following the alleged loss of sugar, he was charged with serious misconduct. This took the form of the stirring of sugar into his warm drink on company time in an area which was undesignated for the consumption of food or drink.
The direct evidence on the latter point is security CCTV footage. However, the video evidence failed to capture the employee drinking his warm drink. An inference was made by management that the employee drank this sugary drink.
One of the charges brought against Makaloi at the disciplinary hearing was the consumption of company stock.
In her arbitral award, the commissioner found that the employee was procedurally fairly dismissed, but that this dismissal was substantially unfair.
Shoprite’s HR manager complained to the Labour Court that the decision reached by the commissioner was not one which a reasonable decision-maker could have reached on the evidential material which was placed before her for determination.
Acting Judge DA Smith was told that employees at this Shoprite store may request provisions from the “cash office department”. Sometimes employees bring their own containers which are used to collect perishables, such as tea, coffee, sugar and powdered milk.
These items may take some days for each employee to consume. When not used, these perishables would be kept in the employees’ individual lockers for their later use.
On this occasion, the employee’s own provision of sugar was kept inside the store within the bakery area. It is in the same area where Shoprite’s large canister (about 25kg) of sugar is kept.
It is from this canister that bakers would use the sugar for the production of the bakery’s baked goods for sale to customers.
The question posed to the court was from where did the sugar in the warm drink come from? Judge Smith said the answer was from one of two alternatives: The employee’s own provision, or from Shoprite’s canister.
But, the judge noted, there was no direct evidence on this point. Makaloi said it was his own sugar, but Shoprite concluded it was from its stock.
Judge Smith said the inference that the sugar came from Shoprite’s baking stash, was unreasonable. The manager’s logic suggested that because the sugar was stirred-in inside the store, it must therefore have come from the 25kg canister and not from the employee’s own sugar stash.
As there was no evidence to prove where the spoon of sugar came from, the judge said Shoprite’s suggestion that it came from its baking supply, cannot be accepted. Thus, the CCMA finding that the dismissal should be overturned, was correct.
Pretoria News
zelda.venter@inl.co.za
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