A Pietermaritzburg Nando’s employee, fired for eating two carrot slices in 2018, is to get his job back after nearly four years. This is in terms of a Labour Court ruling, according to a report in The Witness. Labour Court Acting Judge Kelsey Allen-Yaman upheld the ruling by CCMA commissioner, Nicci Whitear-Nel, ordering the reinstatement of the employee, Ntokozo Gwala. The court agreed with the CCMA that dismissing Gwala was not an appropriate sanction in the circumstances of the matter, that it was unfair, and that Gwala’s action was not indicative of dishonesty. Gwala admitted having eaten two slices of carrots without authorization while on duty on 8 April 2018 but explained he had been tasting them to determine if they were of suitable standards to serve to customers. Gwala was dismissed on 30 July 2018, following a disciplinary hearing where he was found guilty of gross misconduct for the ‘unauthorized consumption of company stock’. After Gwala won his case in the CCMA, Nando’s took the matter on review to the Labour Court, asking the court to set aside Gwala’s reinstatement and either remit the case to the CCMA before a different commissioner, or substitute its own judgment.
Allen-Yaman said it was apparent that Nando’s sought to adopt a ‘zero tolerance’ approach to unauthorized consumption of food. ‘The need for the rule prohibiting unauthorized consumption cannot be doubted, but the need to take into consideration the reason for the breach should not have been ignored.’ The judge said notwithstanding evidence by Nando’s witnesses that the relationship of trust between Gwala and his employer had been irretrievably damaged by his action, the objective evidence showed the contrary to be true.
This was because Gwala had been permitted to work for an uninterrupted period of more than three months after the incident was discovered. The judge added that while accepting Nando’s is required to put measures in place to protect itself from losses because of unauthorized consumption, and that Whitear-Nel did not ‘expressly deal with this factor’ in finding that Gwala’s dismissal was substantively unfair, this did not mean that her ultimate decision was unreasonable. The Witness report says Allen-Yaman ruled Whitear-Nel’s findings and conclusions were ‘those of a reasonable decision-maker’ and dismissed the application by Nando’s for a review. Considering the issue of costs, the judge said it was correct Gwala had been obliged to incur costs to oppose Nando’s application which he could ‘ill afford’ given that he was unemployed. However, given that Gwala is now to be reinstated almost four years after his dismissal, the court said it might hamper ‘the re-establishment of a harmonious working relationship’ between the parties if it ordered costs in his favour. In the circumstances the judge ordered each party to pay their own costs.