The carrot dismissal

2022/06

By Nicolene Erasmus

Case law alert – June 2022

An employee who was dismissed after he had taken and eaten two slices of carrot from the bain-marie, was reinstated by the Labour Court almost four years after his dismissal.

Case summary

On 8 April 2018, an employee of Nando’s, Mr Gwala, was charged with “Gross misconduct: Unauthorised Consumption of Company Stock”. It was alleged that he was dishonest and consumed company stock (vegetables) while on duty at Nando’s, Scottsville.

Following a disciplinary hearing on 30 July 2018, Nando’s found the employee guilty of the charge and his services were terminated with immediate effect. The dispute was referred to the CCMA and Gwala challenged the substantive and procedural fairness of his dismissal. The dismissal was found to be substantively unfair and reinstatement was ordered.

The CCMA commissioner concluded that Gwala had breached a rule, but that he had not acted dishonestly. The commissioner stated, “in the applicant’s case however, his charge sheet goes beyond the offence as described in the disciplinary code and he is charged with being ‘dishonest’ in consuming company stock”.

The commissioner’s finding that the misconduct excluded an element of dishonesty formed the basis for the employer’s review application: “Had she found that dishonesty had in fact been present in the act of misconduct she would not have concluded that the trust relationship was not broken, as a consequence of which she would not have awarded the applicant reinstatement.”

This matter came before the Labour Court on 2 March 2022 and in its analysis, the Court took cognisance of the following:

• the employee had eaten two slices of carrot, but he had done it in order to taste them for the purpose of determining whether they were of a suitable standard;
• the employer’s Disciplinary Code prohibits the unauthorised consumption of stock. This type of misconduct is categorised as a breach relating to dishonesty, theft, unauthorised possession or fraud and recommends the sanction of dismissal for a first offence;
• the fact that the employee had not notified a manager that there was a problem with the carrots, merely demonstrates a possible breach of the rules, not dishonesty; Gwala had in fact drawn the issue of the carrots to the attention of a colleague, who had felt the temperature of the carrots with his hand. This was corroborated by video evidence;
• the Grilled Roast Vegetables procedure manual does not state that the tasting of vegetables is permitted, neither does it state that it is prohibited;
• the fact that the employee had not put his version, namely, that everyone tasted food to the witness must be seen in the context of his opening statement, in which he stated that “each and every day, every employee taste the pap and even the initiator of the, of my case, uhm, he always tasted the products, he always tasted, more especially the pap and the rice”;
• the chairperson’s bias with regard to statements made by him without reference to evidence which he had before him at the disciplinary hearing, but with reference to his own views, opinions and past personal experience: “It is absolutely not allowed for employees to consume any food. It is absolutely disallowed to consume any food. I could even add there I know of prior cases where even waste product coming in off tables is not allowed for employees to eat. Chips, where a customer has left chips on their plate and it comes back to the kitchen, so it is a very well-known rule and it is a very well-regulated rule in this business”;
• while the company had sought to adopt a zero-tolerance approach to unauthorised consumption, the reason for the breach should not have been ignored: Gwala “did not perceive himself to have been breaching the rule: he appears to have understood the rule to have been relevant to the consumption of food items for personal pleasure. On the contrary, his motive in having breached the rule was not to serve his own needs, but to ensure that the quality of the applicant’s product was not compromised”;
• there was no objective evidence that the relationship has been irretrievably damaged. Gwala was permitted to work for an uninterrupted period of more than three months after the infraction had been discovered.

The employer’s review application was dismissed, and each party ordered to pay its own costs.

Nicolene Erasmus is a Director at Labour Guide.

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.