A Cautious Approach Towards the Application of Team Misconduct - South African Commercial Catering and Allied Workers Union v Makgopela (2023) 44 ILJ 1229 (LAC)

The reality faced by the labour market is that employees are prone to committing acts of misconduct from time to time at the workplace. In case of an unexplained stock loss at the workplace however, it becomes difficult for the employer to show on a balance of probabilities that each individual employee was involved in the commission of the offence, before disciplinary action can be validly taken. Consequently, the concept of team misconduct was introduced to deal with the generic dilemma which confronts an employer who has clear evidence of stock loss but is unable to identify the perpetrators of misconduct. The evidential difficulty posed by dismissal for misconduct in circumstances where the primary misconduct has been committed by a group of employees has disseminated the concept of team misconduct. In light of the above mentioned, the recent Labour Appeal Court in SACCAWU v Makgopela has contributed to the elucidation of the notion of team misconduct in the workplace. The court maintained that guilty by association has no place in our law. For an employer to safely rely on team misconduct a factual basis must be established to infer that all employees were indivisibly culpable as members of the team for failing to ensure compliance with the employer's rule. Accordingly, the Labour Appeal Court can be lauded for precisely evaluating the evidence presented and all relevant factors which exonerated the applicants from team misconduct . This case note calls for a critical analysis of the impact of shrinkage in the retail sector, application of team misconduct, practical methods for securing evidence in team misconduct cases as well as the cautionary approach adopted by Savage AJA in the Labour Appeal Court judgement.