A Texas fast-food restaurant has fired the store’s manager after losing $400 in a heist.
A gun-toting robber jumped over the fast-food outlet’s counter and demanded money from the manager. She opened the cash register, granting the robber access to the money in the till. He made off with the meagre contents, leaving everyone shaken, including the pregnant store manager.
To add insult to her emotional injury, the employer demanded that the manager repay the stolen money. The manager refused to pay the money taken by the robber and was then dismissed.
The circumstances surrounding the manager’s dismissal have raised more than one eyebrow,
even in the US with its liberal employment law regime.
How would the law have dealt with the situation had the same
incident occurred at a workplace in South Africa?
Employees in our jurisdiction enjoy statutory protection against unfair dismissal. In terms of the Labour Relations Act, No 66 of 1995, a dismissal is unfair unless the employer can show that it had a valid reason for the dismissal, and that it followed a fair procedure before dismissing the employee.
Employee misconduct is a valid reason for dismissal, where dismissal is the appropriate sanction for the misconduct.
The Basic Conditions of Employment Act, No 75 of 1997, also embargoes employers from deducting money from the employee’s remuneration, save for limited permissible occasions. Where an employee causes loss or damage to an employer, the employer may secure the employee’s consent to deduct money from the employee’s remuneration, provided strict requirements laid down in section 34(2) of the BCEA are met.
These include that the loss or damage must have been due to the fault of the employee and that the amount deducted may not exceed more than the loss suffered.
Applying these principles to the facts of the Texas case, the employee would have been entitled to refuse consent to (1) pay the money stolen to the employer or (2) have the money deducted from her salary. The employer would not have been entitled to use such a refusal as grounds for dismissal.
Under South African law an employer desirous of recovering losses suffered at the hands of an employee, who refuses to agree to pay for the loss, is forced to issue summons for the money in civil proceedings.
The Labour Appeal Court also confirmed in Buckle and Stoop vs Rand Water that the employer may bring a contractual claim for monies lost to the labour court.
In terms of section 37D of the Pension Funds Act, No 42 of 1955, an employer may also request the trustees of a pension fund to exercise their discretion to retain pension monies due to the employee, where the employee was dishonest, committed fraud or had stolen, and the employee either admitted liability in writing or a court has issued judgment in the matter.
The employer may have taken disciplinary action and even fairly dismissed the employee in our jurisdiction if she failed to adhere to the applicable workplace rules. In the case of the fast-food restaurant, the workplace rule is reported to be that the manager must ensure that the cash in the register does not exceed a certain amount. This type of workplace rule is common in retail outlets and is aimed at minimising the loss that may be suffered in the event of a robbery. The manager stated that the restaurant was busy, therefore she was unable to check and empty the cash register in time.
Had the incident taken place in a South African workplace our employment tribunal, the Commission for Conciliation, Mediation and Arbitration, would likely have agreed with the employer that the manager was negligent in not ensuring that the cash register was regularly checked and emptied. An employer is entitled to lay down fair and valid workplace rules that are aimed at ensuring the smooth running of its business. Employees failing to abide by these rules are at risk of disciplinary action that could include dismissal.
The employee’s pregnancy adds a further complicating factor to the matter in that employees in South Africa receive protection against discrimination based on factors that include pregnancy.
However, the facts of the Texas matter do not suggest that her pregnancy played a role in the decision to dismiss her. Had it been the case and the dismissal had occurred in a South African workplace, the employee would have been able to claim that her dismissal was automatically unfair. If successful, she would have been entitled to reinstatement, re-employment or compensation of up to a maximum of 24 months’ remuneration.
l Botes is a director in the employment division at Cliffe Dekker Hofmeyr