Labour Court reinstates Woolworths employee dismissed for alleged misconduct caught on CCTV.
Image: Supplied
The Labour Court in Johannesburg has dismissed an application by Woolworths (Pty) Ltd to review and set aside an arbitration award that reinstated a long-serving employee dismissed for alleged “suspicious” conduct in a stockroom.
Acting Judge W.N. Sidzumo ruled that the giant retailer failed to prove misconduct on a balance of probabilities and upheld a decision of the Commission for Conciliation, Mediation and Arbitration (CCMA) ordering the employee’s reinstatement with six months’ back pay.
The employee, Jane Makhubela, who had worked for Woolworths for about 16 years as a departmental coordinator, was dismissed in October 2023 after CCTV footage showed her placing her hands between her thighs while in a high-risk stockroom area.
The company charged her with gross misconduct, alleging she had breached policies designed to protect the business from shrinkage, risk and loss by behaving in a “suspicious manner”.
Woolworths argued that her actions appeared to be an act of concealment and that she provided different explanations when questioned, which it said demonstrated dishonesty and destroyed the trust relationship.
However, no item was ever identified as having been concealed, and no stock loss was recorded.
After arbitration in March 2024, the CCMA found the dismissal substantively unfair. The commissioner held that suspicion alone could not justify dismissal and that the employer had failed to prove concealment or any financial loss.
Makhubela explained that she had been adjusting her tights and sanitary pad in the stockroom because her time was limited and the bathrooms were upstairs. She also testified that cultural reasons made her uncomfortable discussing menstruation with male managers.
The arbitrator found her version “probable and trustworthy” and ordered her reinstatement with retrospective effect from 25 October 2023, along with back pay totalling R54,464.
Woolworths approached the Labour Court under Section 145 of the Labour Relations Act, arguing that the commissioner had acted unreasonably, failed to apply his mind, and improperly accepted what it called mutually exclusive and dishonest versions from the employee.
But the court held that the central question was whether the arbitrator’s decision fell within the band of reasonableness.
Judge Sidzumo emphasised that suspicion, however strong, cannot replace proof of misconduct. The CCTV footage did not show any item being concealed, and the charge itself did not expressly allege dishonesty.
The court also found that the employee’s explanations were not inherently contradictory and that no evidence had been presented to show actual concealment, financial loss, or irreparable breakdown of trust.
The court reiterated that reinstatement is the primary remedy for unfair dismissal unless continued employment would be intolerable or impracticable.
In this case, Woolworths had failed to demonstrate that reinstatement was not reasonably practicable or that the employment relationship had irretrievably broken down.
“The versions advanced were not shown to be false or deliberately misleading,” the judge noted, adding that dishonesty had not even formed part of the formal charge.
The court granted condonation for the late filing of Woolworths’ supplementary affidavit but dismissed the review application and made no order as to costs.
IOL News