law to the same effect.’ But this statement is to be considered within the factual context of that case. There the employees faced a hearing and dismissed for poor work performance relating to stock losses. Furthermore the complaint about their performance relating to stock losses was in respect of an extended period of time with reference to vacillating percentages above the accepted range over a period of several months. The court found that the employer had not discharged the burden of justifying the dismissals. The court, with respect, correctly found that the employer confirmed the issue of poor work performance a form of – incapacity with that of misconduct. The employer had viewed the failure to – curb stock losses over an extended period as a form of misconduct. Yet proceeded against and dismissed the employees for misconduct. The court further found that the failure to follow its internal proceedings by the employer rendered the process defective and concluded that the employer had failed to show that the dismissals were for a valid and fair reason. Gibson J referred to a suggestion of collusion or conspiracy in the disappearance of and stated: was concerned that an employer who suspects acts of dishonesty being ‘I done by his workers but is unable to prove it should hide behind the cloak of collective responsibility to make the charge stick.’ This and the earlier statement are to be viewed within the context of that case where the employer confused misconduct with incapacity and merely – relied percentages of stock losses over a protracted period and did not follow its own procedures. In this matter, the removal of 2,5 tonnes of fish occurred in a single shift and the employers were instead charged with a breach of their duty of faithfulness to their employer and not to act against its interests (and not with an incapacity issue). The court’s finding in Pep Stores on the question of procedure would, with respect, appear to be correct. But the statements on collective guilt, not central to that court’s holding, relied upon a South African CCMA decision in
law to the same effect.’ But this statement is to be considered within the factual context of that case. There the employees faced a hearing and dismissed for poor work performance relating to stock losses. Furthermore the complaint about their performance relating to stock losses was in respect of an extended period of time with reference to vacillating percentages above the accepted range over a period of several months. The court found that the employer had not discharged the burden of justifying the dismissals. The court, with respect, correctly found that the employer confirmed the issue of poor work performance – a form of incapacity – with that of misconduct. The employer had viewed the failure to curb stock losses over an extended period as a form of misconduct. Yet proceeded against and dismissed the employees for misconduct. The court further found that the failure to follow its internal proceedings by the employer rendered the process defective and concluded that the employer had failed to show that the dismissals were for a valid and fair reason. Gibson J referred to a suggestion of collusion or conspiracy in the disappearance of and stated: ‘I was concerned that an employer who suspects acts of dishonesty being done by his workers but is unable to prove it should hide behind the cloak of collective responsibility to make the charge stick.’ This and the earlier statement are to be viewed within the context of that case – where the employer confused misconduct with incapacity and merely relied percentages of stock losses over a protracted period and did not follow its own procedures. In this matter, the removal of 2,5 tonnes of fish occurred in a single shift and the employers were instead charged with a breach of their duty of faithfulness to their employer and not to act against its interests (and not with an incapacity issue). The court’s finding in Pep Stores on the question of procedure would, with respect, appear to be correct. But the statements on collective guilt, not central to that court’s holding, relied upon a South African CCMA decision in
Novanam%20Ltd%20v%20Absalom%20(LC%20101-2013)%20[2014]%20NAHCMD%2038%20(29%20September%202014).docx