Shoprite loses labour court fight over contested R10,000 dismissal of long-serving worker

The Labour Court in Durban has dismissed an application by Shoprite Checkers to overturn the Commission for Conciliation, Mediation and Arbitration (CCMA) ruling that found the dismissal of long-serving employee Thandeka Mabel Ngcobo substantively unfair. Judge Kelsey Allen-Yaman upheld an earlier arbitration award ordering Thandeka Mabel Ngcobo’s retrospective reinstatement with back pay after she lost her job following the disappearance of R10,000 from a store cash office. Ngcobo, who had worked for Shoprite since 1988 and served as a cash office clerk for more than a decade, was dismissed in November 2017 after money went missing during her shift. During her shift, Ngcobo briefly left the cash office to use the restroom, leaving a trainee manager alone in the room with the safe unlocked. The missing funds were discovered the following day during a routine shift handover. Although an internal investigation and subsequent polygraph tests cleared Ngcobo of directly stealing the money, Shoprite dismissed her on grounds of gross negligence, asserting that she violated company protocol by failing to lock the safe when she stepped away. A trainee manager who had been left alone in the cash office was notably not subjected to a polygraph examination. Ngcobo subsequently challenged her dismissal at the CCMA. In May 2018, a CCMA commissioner ruled that her dismissal was substantively unfair and ordered Shoprite to reinstate her with full backpay. Shoprite then petitioned the Labour Court to review and set aside the arbitrator's decision, arguing that the commissioner had misconstrued the case and exceeded his powers. In evaluating the merits, Judge Allen-Yaman highlighted severe gaps in Shoprite’s evidentiary case. The court found that the retailer failed to provide any documentary proof—such as a formal company code, policy, or procedure manual—establishing that a rule actually existed requiring the safe to be locked every time an employee briefly left the room. Furthermore, Ngcobo admitted she had left the safe unlocked. She testified that it was common workplace practice for staff and managers alike to leave the safe open out of convenience, stating that the office operated on trust and reopening the safe repeatedly was time-consuming. She denied acting recklessly and maintained that she never imagined another employee would steal the money. The court agreed that Shoprite had not established that Ngcobo’s conduct amounted to negligence, let alone gross negligence. Judge Allen-Yaman stated that for conduct to qualify as gross negligence, it must demonstrate an extreme departure from the standard expected of a reasonable employee. The judgment also criticised Shoprite for failing to consider progressive discipline or mitigating factors before dismissing Ngcobo. The court pointed to her 29 years of unblemished service, her honesty during the investigation, and the fact that she was the sole breadwinner in her family. Ultimately, the court ruled that although the arbitrator may not have perfectly framed the legal enquiry, the outcome reached by the CCMA was one that a reasonable decision-maker could have arrived at based on the evidence. Shoprite’s review application was dismissed, and the court made no order as to costs, meaning each party will pay its own legal expenses.