What is it & How can it be applied in Labour Law
A recent decision by the labour appeal court of South Africa has raised eyebrows and resulted quite some discussion surrounding the Communal Misconduct of employees and how it can affect your business decisions. We refer to the case of The South African Commercial Catering and Allied Workers Union & Another vs Cashbuild (Pty) Ltd & Others (case number JA38/2021).
The case is involving Communal Misconduct or Derivative Misconduct which we are bringing under your attention in the hope to shed some light on it.
The employer, Cashbuild (Pty) Ltd, noted that they were suffering an extensive shortfall or shrinkage of stock, they investigated this shortfall / shrinkage and during the course of the investigation they provided questionnaires to their staff and the employees started to blame other staff members to which accusations were made.
The company, following these back-and-forth accusations and after completing their due diligence, summoned all staff involved to a disciplinary enquiry where they were charged as follow:
“Collective Misconduct/Team Misconduct in that: ‘You on or during the period 28 March 2016 to 25 June 2016 as individual components of the group each culpable failed to ensure that the group complies with a rule or attains a performance standard set by the employer where shrinkage reaches unacceptable levels in the amount of R202 317,72.”
The staff were subsequently found guilty and dismissed by the Chairperson under Communal Misconduct, meaning that they were all responsible and guilty.
The CCMA subsequently agreed with the Company and upheld the dismissals.
At the Labour Court, the Judge again agreed with the CCMA and upheld the dismissals as fair which then saw a referral to the Labour Appeal Court and again, it was upheld as a fair dismissal.
It can thus be noted, that where a team of staff members are responsible for the outcome of certain deliverables, it is possible to keep the entire department or team responsible for the lack of performance or reaching targets / deliverables.
It is important that the Company does do specific target setting during the annual strategic outlook for the year and communicate such targets to all staff members against targets that can be measured.
