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In another case involving sugar in the workplace, the Labour Court overturned a decision by the Commission for Conciliation, Mediation and Arbitration (CCMA) to reinstate an employee after a 12.5kg bag of sugar disappeared.
Famous Brands approached the court, arguing that Commissioner Nolitha Mdledle committed material errors, misconceived the nature of the issues and committed material errors of law.
“These defects in her reasoning, in her award, were such that the outcome of her award was one that no reasonable commissioner could have reached on the evidentiary material properly before her,” argued Famous Brands.
Sebenzile Mabengu had been an employee of Famous Brands since 1990. He was a van assistant and a shop steward with an unblemished record of employment.
After Famous Brands recorded a loss of a 12.5kg bag of sugar, it investigated the incident that caused such loss.
The company interviewed employees, and the investigation revealed prima facie misconduct by Mabengu and other employees.
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Mabengu was charged with a sole count of misappropriation of the sugar and ultimately, summarily dismissed on 6 May 2022.
Mabengu took the matter to the CCMA, where it was found that Famous Brands could not prove the employee was responsible for the missing sugar.
She concluded in her award that the employee’s dismissal was substantially unfair. As relief, she awarded the employee’s reinstatement.
Mabengu’s duties included pushing a trolley between the delivery van and the company’s customer’s goods-receiving area or kitchen.
On the day of the delivery, the Famous Brands van was loaded with bags of dough mix only.
The sugar was, therefore, an unusual item to be loaded, and then delivered, along with the dough mix. The bag of sugar was branded with the company name and logo of “Huletts”, while the dough mix was in plain white bags.
“The reason for this was to press the point that it would be difficult for a bystander to fail to notice the bag of sugar once the piles of dough mix were reduced after various deliveries on that day,” argued the company.
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No bag, or any other bag closely resembling the sugar, was accidentally delivered to customers on its delivery route.
Mabengu’s evidence throughout was that he didn’t notice the sugar.
However, Mr Van Niesson, the forklift driver, during the company’s investigation, implicated Mabengu, along with the rest of his delivery crew in the loss of the sugar.
He too was dismissed for his admitted participation in the loss of the sugar.
In challenging the CCMA finding, Famous Brands questioned how Mabengu could not have noticed the sugar. If the sugar had been noticed, it was also the employees’ responsibility to return the sugar to the depot.
Famous Brands further argued that Mabengu, who would push the trolley with the items just off-loaded from the van to the customer’s goods-receiving area, would have noticed the bag of sugar once the wall of dough mix had lowered sufficiently.
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The company said Mabengu’s long service was an aggravating factor in the case. It viewed his conduct as even more of a betrayal.
It argued for a breakdown of the trust relationship between it and Mabengu.
Judge D.A. Smith agreed with the company and ordered that “the dismissal of Sebenzile Mabengu is found to be substantively fair.”
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