Picture: iStock
Who would have thought that stirring a cup of tea or coffee during working hours could lead to a Shoprite baker’s dismissal and a subsequent legal battle?
Godfrey Makaloi, a baker at a Shoprite store in Kimberley since 1991, was dismissed by the company following disciplinary proceedings, despite having a “clean record of service”.
Shoprite charged Makaloi with serious misconduct after he was caught on camera “stirring sugar into his warm drink during company time in an area not designated for food or drink consumption”.
The company also alleged that the sugar he used came from the bakery’s stock.
Makaloi challenged his dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA) and won his case.
CCMA commissioner Zoliswa Tabo ruled that while the dismissal was procedurally fair, it was substantially unfair.
Tabo concluded that the video evidence did not show Makaloi drinking from his mug, despite allegations by the Shoprite store’s grocery manager that he had consumed the sugared drink.
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As a result, the commissioner ordered that Makaloi be reinstated with three months and two weeks’ back pay, effective from 10 January 2023.
However, Shoprite Checkers escalated the matter to the Labour Court, aiming to overturn the CCMA’s decision.
The company requested that the court either rule the baker’s dismissal as substantively fair or send the dispute back for reconsideration by a different CCMA commissioner.
In a judgment delivered this week, Judge D.A. Smith reviewed the key facts of the case, including video footage showing Makaloi “stirring something into a mug of either tea or coffee”.
Although Makaloi acknowledged that he was the person in the video, he did not admit to drinking the warm beverage, as the footage only depicted him holding the mug.
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Employees at the Shoprite store in Kimberley could request provisions from the “cash office department”.
They were also permitted to bring their own containers to collect perishables such as tea, coffee, sugar, and powdered milk, which could be stored in the employees’ individual lockers for later use.
Makaloi’s legal team argued before the Labour Court that he kept his personal supply of sugar in the bakery area, where Shoprite also stored a large 25-kilogramme canister of sugar used for baking goods sold to customers.
While Makaloi admitted that his drink contained sugar, the baker denied that it came from the company’s canister.
In its version, Shoprite criticised Tabo for “failing to properly assess the material evidence”, arguing that this oversight led the CCMA commissioner to reach “an unreasonable result”.
Smith noted that Shoprite alleged Makaloi had consumed sugar in an undesignated area between 17 and 22 October 2022, without following staff buying procedures, contributing to the store’s stock “shrinkage”.
However, the acting judge found that the grocery manager’s claim that Makaloi took the store’s sugar was not supported by “direct evidence”.
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“It was an inference which he made unreasonably. His logic suggests that because the sugar was stirred-in inside the store, it must therefore have come from the 25kg cannister and not from the employee’s packet,” the judgment reads.
Smith agreed with Tabo’s conclusion that the video footage did not reveal the source of the sugar.
“The commissioner’s analysis of the evidence before her, at this crucial stage, is neither unreasonable, nor does it produce an unreasonable outcome.”
The judge further noted that there was no evidence showing Makaloi drinking from the mug so “consumption cannot be proven”.
“Neither the video evidence nor direct evidence could demonstrate the employee taking a sip from the mug. At most for the applicant, the employee admitted stirring his own sugar into a warm drink,” the judgment states.
Regarding the second charge of not following staff buying and cancelling procedures, Smith highlighted that a witness testified she had provided Makaloi with his personal supply of sugar from the cash office department.
The judge also pointed out that Shoprite did not challenge the witness’s testimony, as she was not cross-examined.
Smith concluded that since the first two charges could not be proven, Shoprite’s bakery did not suffer any loss of sugar.
Therefore, the CCMA’s decision to overturn Makaloi’s dismissal was correct.
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