By lvan lsraelstam, chief executive of Labour Law Management Consulting
Frequently employers know that serious misconduct has occurred but are unable to prove which employee or employees are responsible. This can occur in a variety of circumstances.
• Stock may go missing from a warehouse or retail store where any of a number of employees had access to the stock and opportunity to remove it
• Damage may have been caused to business machinery in a workshop used by numerous employees
• Confidential information may have been leaked
• There may be cash shortages in tills or other cash storage points
Employers are often tempted in such cases to discipline everyone who could possibly have been involved in such misconduct. This buckshot approach by employers may be motivated by a number of factors including the thinking that:
• If we fire the lot we will be sure to get rid of the culprit
• Some case law has given the impression that such group dismissals may be justified
In the case of NUSFRAW obo Gomez & others vs Score Supermarkets (2003, 8 BALR 925) a group of managers were dismissed as a result of stock losses amounting to six million rand. While there was no proof that these managers were guilty they were fired. The CCMA arbitrator found that the poor management of the business by the dismissed employees had led to the losses and that this justified the dismissal.
Again in the case of FEDCRAW vs Snip Trading (Pty) Ltd the arbitrator ruled in favour of group dismissals. Here, the employer had a policy which held every employee responsible for stock losses. When stock disappeared several employees were fired despite the absence of direct evidence of their guilt.
The arbitrator found that the concept of group responsibility for stock losses was not unfair under the circumstances.
The outcomes of these two cases have misled a number of employers into believing that group dismissals are inherently fair. However, this will only hold true in exceptional circumstances. It will depend on the extent to which the employees specifically have responsibility for prevention of losses and have the means of preventing losses. It will also depend on the viewpoint of each individual arbitrator.
For example, in NUM & Others vs RSA Geological Services (2004, 1 BALR 1) fifteen employees were dismissed after kimberlite was found dumped down a borehole. The CCMA upheld the dismissal of five of the employees because there was some evidence of their individual guilt. However, the arbitrator ordered the reinstatement of the other ten employees as there was insufficient proof that they had been implicated in the dumping of the kimberlite.
Again in SAGAWU obo Cingo & Another vs Pep SA Limited (2004, 10 BALR 1262) the entire staff of one of the employer’s stores were dismissed for stock losses. The CCMA found that the group dismissal was unfair because the employer had failed to prove that the dismissed employees were guilty of misconduct. The dismissed employees were reinstated with full retrospective effect.
The apparent lack of consistency in case law and the powerful laws protecting employees from unfair dismissal sound a strong warning to employers not to act against employees before they fully understand their legal rights. The correct actions of the employer will differ from case to case depending on a number of legal subtleties and interpretations.