By Teboho Mokoena

This time around, I have chosen to focus on the concept &Team Misconduct&. This is particularly relevant, among others, as we shall see in the case we are about to examine, in the retail sector, although it is by no means limited to the sector.

Professor Grogan broadly defines team misconduct as “an instance where an employer charges and issues appropriate sanctions against a group of workers because responsibility for the collective conduct of the group is indivisible”. It is defined as indivisible when it is extremely difficult to prove that an act of misconduct was caused by a particular employee. In such cases, individual members of a group of employees are deemed to have collectively acted culpably in ensuring failure to meet set performance standards or compliance with a known workplace rule.

According to Professor Grogan, in such instances of team misconduct, it becomes unnecessary for an employer to prove individual culpability. This is so because, according to Grogan, the collective conduct of the group is indivisible. 

This concept is also referred to as &derivative misconduct&. As it can be noted from the term, ‘derivative’, that particular act of misconduct does not have to originate from one specific employee, but is rather ascribed to a group that is deemed to have acted or failed to act, resulting in an act of misconduct.

Professor Grogan coined this concept when he was an arbitrator in the case of Federal Council Retail and Allied Workers v Snip Trading (2007) 7 BLAR 669 (T).

In his award, Grogan also made reference to the case of Commercial Catering and Allied Workers Union v Pep Stores (1998) 19 ILJ 939 (CCMA). In this matter, an entire staff complement in a particular store, Lady Frere, was dismissed after an enquiry into 81% stock losses. The arbitrator in that matter found that the stock loss figure was so glaring it could not possibly have escaped the attention and knowledge of every member of the Lady Frere staff.  It was further held that it was the responsibility of every staff member to protect the interests of their employer.

It is also worth mentioning that the Labour Appeal Court (LAC) has also dealt with this issue in the case of Chauke and Others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC). Here, the LAC held that an employer, who suffered continuously under industrial sabotage perpetrated by unidentified employees, was entitled to dismiss all the employees on the shop floor where the damages occurred, on the basis that the employees must have known who the perpetrators were. 

That said, the LAC acknowledged that these types of matters raised a pertinent challenge in so far as the perception of fair labour practice is concerned, predominantly as it relates to the issue of substantive and procedural fairness. It is hardly surprising that the LAC had to contend with this issue that is arguably the cornerstone of fair labour practice. 

Therefore, the LAC had to pose the appropriate question: “Where misconduct necessitating the disciplinary action is proved, but management is unable to pinpoint the perpetrator or perpetrators, under what circumstances will it be permissible to dismiss a group of workers which incontestably included them? 

In this regard, Cameron JA postulated two lines of justification for a fair dismissal in such circumstances. The first is where an employee, who is part of the group of perpetrators, is under a duty to assist the employer in bringing the guilty to book. The second is where an employee ‘has or may reasonably be supposed to have information concerning the guilty, his or her failure to come forward with the information may itself amount to misconduct’.

The LAC further reasoned that relationship between employer and employee is in essence one of trust and confidence, even at common law, conduct clearly inconsistent with that essential warranted termination of employment. Failure to assist an employer in bringing the guilty to book violates this duty and may itself justify dismissal. The learned judge of appeal further held that this derived justification is wide enough ‘to encompass those innocent of it, but who through their silence, make themselves guilty of a derivative violation of trust and confidence.’ In this regard, the LAC made reference to the case: Council for Scientific and Industrial Research v Fijen (1996) 17 ILJ 18 (A).

Now that we have dispensed with the legal issues at hand, let us turn our attention to the actual facts of the case at hand. The case under the spotlight is that of Foschini Group vs Maidi Mabel and 4 Others, Case No: JA12/08.

The employees in this case were working at the Mabopane Foschini branch. They were issued with the following charge: ‘failure to secure assets of the company’ after substantial stock losses were detected at the clothing store where they had been employed. The facts and events gave rise to the charge and the subsequent dismissal of the respondents commenced after the employer had carried out one of its biannual financial stock-takes. It was during this stock-take process that it emerged that this particular store had, according to the employer, experienced severe stock shrinkage in excess of 28%. 

Following what may be best described as a complicated and unnecessarily convoluted disciplinary process, each of the respondents was notified in writing that they were found guilty and dismissed for the following: ‘Gross negligence in that you failed to take proper care of company property under your control resulting in a financial loss of R 207,000 as well as an irretrievable breakdown in the trust relationship. The fact that you allowed stock losses to reach a level in excess of 28% also indicated a total lack of commitment toward the company.’

Naturally, the employees took the matter to the CCMA. After a series of sittings, the arbitrator ruled that the dismissals were both substantially and procedurally fair. The employees then took the matter up with the Labour Court (LC). The LC overturned the decision of the arbitrator and remitted the matter back to the CCMA, to be heard again. The employer then referred the matter to the LAC. It was at this stage that the matter fell within the purview of the LAC. 

The LAC concluded, based on the evidence presented, that it appeared that the employees colluded to keep from their employer the fact that almost a third of the stock in the Mabopane store disappeared and gave unacceptable explanations for the disappearances. The relationship of trust between them and the appellant clearly has broken down irretrievably. Under these circumstances, dismissal was the only appropriate sanction.

Sadly, according to the LAC, Mr Khoza, appearing for the employees, respondents, did not take issue with these legal principles above. He, instead, reiterated the argument that the appellant did not prove the existence of a stock loss of 28%. In addition, Mr Khoza argued that dismissal was too harsh a sanction given the service records of the respondents which ranged from eighteen to three years’ service.

So, what are we to learn from this case?

Critically, as we have seen from the above, it is possible, from the case study and precedents, that the concept of team misconduct does exist in our labour lexicon.

It is important that even those who may not be culpable, in their individual capacities, cannot turn a blind eye and bear the responsibility, based on their individual contracts with their employers, to bring to their attention any malfeasance that they may be aware of.

Lastly, the employer still bears the onus of ensuring that, even in instances of team misconduct, procedural and substantive fairness is always adhered to.

This case is so important that in the next issue I will delve further into the issues of procedural and substantive fairness.