The Labour Court in Johannesburg has dismissed a review application by Woolworths (Pty) Ltd, confirming that the dismissal of a departmental coordinator with 16 years of service was substantively unfair. Jane Makhubela (“Ms Makhubela”), who had worked for Woolworths since 2007, was dismissed in October 2023 following a disciplinary hearing relating to an incident captured on CCTV footage on 13 April that year.
The footage showed her in a stockroom placing her hands between her thighs while covered by an apron. The stockroom was described by management as a high-risk area holding between R15 million and R20 million worth of stock. The charge against her was framed as gross misconduct in that she had “behaved in a suspicious manner in a high-risk area,” in breach of company policies designed to protect against shrinkage and loss.
Makhubela offered several explanations for her conduct across different interviews, which Woolworths argued were mutually exclusive and demonstrated dishonesty. Initially she mentioned discomfort related to a previous caesarean operation, then referred to adjusting her tights, and finally, during cross-examination at the CCMA arbitration, disclosed that she had been attending to her menstrual cup. She explained that limited time and the distance to the toilets had made the stockroom the practical option. She also cited a cultural reluctance to discuss menstruation with male supervisors as the reason for not disclosing this earlier.
CCMA Commissioner Sibusiso Mkandawire found in Makhubela’s favour, concluding that the dismissal was substantively unfair. No item was found concealed on her person, no stock was reported missing, and the company could not demonstrate any financial loss. Woolworths sought to have the award set aside on review.
The Labour Court declined. Acting Judge Sidzumo found that the arbitrator had correctly applied the established legal test that suspicion, however strong or reasonable, does not constitute misconduct. The court noted that Woolworths’ own witnesses had conceded there was no footage of Makhubela removing any item from the stockroom.
Critically, the court found that the charge itself was fatally vague. The word “suspicious” does not appear in the company’s Disciplinary Code or the employee’s job profile, and dishonesty was never included in the charge sheet. On the question of Makhubela’s varying accounts, the court found them reconcilable in context. She had recently returned from a four-month suspension on an unrelated matter and testified that stress had affected her recall. The court noted this evidence was never contradicted by Woolworths.
Reinstatement, ordered retrospectively to the date of dismissal, together with six months’ back pay of approximately R54,000, was upheld as the appropriate remedy. The court found that Woolworths had not established that the trust relationship had been irreparably broken, nor that continued employment was intolerable or impracticable.
You can read the full Woolworths v CCMA judgement here.
Written by Theo Tembo
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