A supermarket employee, who was fired on suspicion of having lemon juice belonging to the shop in his water bottle, is fighting his axing. He says his water bottle contained traditional medicine.
The SA Commercial, Catering and Allied Workers Union (Saccawu) turned to the court on behalf of its member, Wonder Dlamini, who worked at a grocery shop. He was charged with and dismissed for the illegal removal of company property in that he had removed the company’s lemon juice without approval or authorisation.
The matter first went to arbitration, where the commissioner ruled against Dlamini and found that his dismissal was fair.
He subsequently turned to the Labour Court.
The company’s star witness was Patricia Chauke, who was employed as a security guard. Her evidence was that on March 20, 2020, Dlamini took an empty bottle and went to the bakery section of the shop.
When he came back from the bakery section, he was carrying the same bottle, this time with lemon juice inside, she said. He left his backpack with the water bottle inside, at the parcel counter.
Chauke said she became suspicious of the substance in the bottle and went to look for her supervisor. They both went to the parcel counter, took Dlamini’s bag and searched it.
Chauke testified that her supervisor took the bottle out of the bag and they tasted the contents. They concluded that the substance in the bottle was lemon juice.
The tasting happened in the absence of the employee.
Chauke said she saw on video footage inside the store that the employee was seen picking up a bottle of lemon juice from the floor and going to the coldroom. At the time of entering the coldroom, the employee had an empty bottle he had collected earlier from Chauke and a bottle of lemon juice.
The employee was then seen exiting the coldroom with a bottle that contained a substance. He went to the security checkpoint where he was searched by another security guard and went outside.
Chauke blamed the security guard who was searching the employee for not doing his job properly.
Dlamini’s version of events was not materially different to Chauke’s evidence, except for the substance contained in the bottle.
He testified that he asked Chauke for an empty bottle, took it from where Chauke pointed and went to the bakery section. He poured tap water into the bottle and then proceeded to the coldroom.
On his way there, he picked up a bottle of lemon juice that was on the floor and went inside the coldroom. There are no cameras in the coldroom. He came out of the coldroom with one bottle, which the company alleged was lemon juice and the employee alleged was water.
He proceeded to the security checkpoint where he was searched, with his hands in the air and holding the bottle, before going outside.
He came back later, went to the parcel counter and placed the bottle inside his bag. His evidence was that the substance in the bottle, at the time of exit, was water and that when he returned, the bottle contained traditional medicine.
Chauke said that because she had caught Dlamini with company lemon juice in his bottle, he threatened her. During the CCMA proceedings, the commissioner accepted that she was threatened and concluded that the threat emanated from the issue pertaining to the lemon juice.
In conclusion, he found that the dismissal was fair.
But Labour Court judge Molatelo Makhura said the commissioner’s finding was irrational. Even if it was accepted that the employee had threatened Chauke, that did not prove that the bottle found in his bag contained lemon juice and that it had been taken from the shop.
The investigation, which involved taking and searching the employee’s bag without his authorisation and in his absence was clumsily and poorly conducted and violated his right to privacy.
His dismissal was declared substantively unfair and the company was ordered to reinstate him retrospectively.
ZELDA VENTER