The employee worked at the Game store in Evaton. He challenged his dismissal for assault of shoplifters who were stealing from the store.
The evidence was that he would slap them or hit them with a nearby object, and some of the shoplifters would cry as they were in pain.
The employee disputed that his acts were assault. He claimed that even the store manager said “it was not an assault, it was a few claps”.
He agreed that the ‘touching’ of customers happened on several occasions when the shoplifters were uncooperative, hostile and arrogant. He also claimed that he was treated differently to Mr Geldenhuys, who kicked a co-worker.
The court found that on the evidence, it had been established that the employee had committed assault, which was serious misconduct. The court also found that it is not always essential to phrase charges of misconduct in precise terms, as long as the employee knows what the essence of the allegations are and has an opportunity to answer to them.
On the inconsistency issue, the court found that the employee failed to establish that Mr Geldenhuys committed the same misconduct as the misconduct he was dismissed for. It also found that an inconsistency challenge must be properly raised at the commencement of the employee’s case, and that the employee had failed to do so.
As a result, the court overturned an arbitration award in the employee’s favor in which it had been found that his dismissal for assault had been unfair.
Read a copy of the judgment here:
Massstores – Mmethi
Very interesting case outcome.