Section 188 of the Labour Relations Act, No 66 of 1995 permits an employer to dismiss an employee for reasons related to the employee's misconduct. Employers have tried to broaden the ambit of this form of dismissal by arguing that employees can be dismissed based on a suspicion of misconduct alone.

In the leading case of Algorax (Pty) Ltd v Chemical Industrial Workers Unionand another [1995] 10 BLLR 1 (LAC), the court held that an employee may be dismissed based on a suspicion provided the suspicion is bona fide, reasonable and renders the continued employment relationship intolerable.

In the more recent case of Senzeni Mbanjwa v Shoprite Checkers (Pty) Ltd and Others (DA 4/11) [2013] ZALAC, the Labour Appeal Court (LAC) was tasked with considering whether this ground of dismissal was still permissible.

Senzani Mbanjwa (Employee) was employed by Shoprite Checkers (Pty) Ltd (Employer) in the position of cashier. On 28 April 2006, the Employee proceeded to ring up items for a customer, Ms Magoso (Customer), who worked as a car guard outside of Checkers' place of business. On the day in question, the Employee rang up the items at the kiosk as opposed to the normal tills. The Customer did not have the total amount of money with her and subsequently left the store, returning ten minutes later to pay for all of the items. The Employer's assistant manager, Ms Pillay (Manager), watched the Employee ring up the items and had also seen the Employee and Customer talking to each other on the previous day. For a number of reasons, some of which are mentioned above, the Manager was suspicious of the Employee's behaviour.

Following this suspicion, the Employee was called to attend a disciplinary hearing for allegedly committing 'gross misconduct' in that she attempted to under ring items while operating the till. The Employee was found to have committed the said allegation and was summarily dismissed. Questioning the fairness of her dismissal, the Employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

During arbitration, the Customer conceded that the allegation levelled against the Employee was based only on her suspicion that the Employee attempted to under ring items based on what she had witnessed. After considering the evidence, the commissioner concluded that the Employee's dismissal was substantively unfair.

On review, the Labour Court concluded that there had not been a full and fair hearing and remitted the matter to the CCMA to conduct the hearing anew. This decision was taken on appeal to the LAC. 

The LAC held that the main issue was not whether dismissal was the appropriate sanction, but rather whether the Employee had committed the misconduct in the first place. The Court found that where an employer suspects that an employee has dishonest intentions, the employer can't rely on the suspicion as a ground of dismissal. Emphasising this point, the LAC stated that, "suspicion, however strong or reasonable as it may appear to be, remains a suspicion and does not constitute misconduct".

Employers should thus ensure that they have tangible evidence to support dismissals, rather than relying on ungrounded suspicions.

Written by Hugo Pienaar, Director,  and Joloudi Badenhorst , Candidate Attorney, Employment practice, Cliffe Dekker Hofmeyr