Suspicion Is Not Proof: Labour Court Rules Against Woolworths for Firing Employee Over CCTV ‘Oddity’

The Labour Court in Johannesburg has dismissed Woolworths’ attempt to review an arbitration award that reinstated a long-serving employee dismissed for alleged “suspicious” conduct in a stockroom.

Acting Judge W.N. Sidzumo ruled that the retailer failed to prove misconduct on a balance of probabilities, upholding the CCMA’s decision to order reinstatement with six months’ back pay.

The Employee

Jane Makhubela had worked for Woolworths for about 16 years as a departmental coordinator. In October 2023, she was dismissed after CCTV footage showed her placing her hands between her thighs while in a high-risk stockroom area.

The Charges

Woolworths charged her with gross misconduct, alleging she breached policies designed to protect the business from shrinkage, risk, and loss by behaving in a “suspicious manner.”

The company argued that her actions appeared to be an act of concealment and that she provided different explanations when questioneddemonstrating dishonesty and destroying the trust relationship.

The Problem

No item was ever identified as having been concealed. No stock loss was recorded.

The Explanation

At arbitration, Makhubela explained she had been adjusting her tights and sanitary pad in the stockroom because her time was limited and the bathrooms were upstairs. She also testified that cultural reasons made her uncomfortable discussing menstruation with male managers.

The arbitrator found her version “probable and trustworthy.”

The CCMA Ruling

The CCMA found the dismissal substantively unfair. The commissioner held that suspicion alone could not justify dismissal and that the employer had failed to prove concealment or any financial loss.

Makhubela was ordered reinstated with retrospective effect from 25 October 2023, along with back pay totalling R54,464.

The Labour Court

Woolworths approached the Labour Court, arguing the commissioner had acted unreasonably and improperly accepted what it called mutually exclusive and dishonest versions.

The court held that the central question was whether the arbitrator’s decision fell within the “band of reasonableness.”

Judge Sidzumo emphasised that suspicion, however strong, cannot replace proof of misconduct. The CCTV footage did not show any item being concealed, and the charge itself did not expressly allege dishonesty.

The court found that Makhubela’s explanations were not inherently contradictory and that no evidence had been presented to show actual concealment, financial loss, or irreparable breakdown of trust.

“The versions advanced were not shown to be false or deliberately misleading,” the judge noted, adding that dishonesty had not even formed part of the formal charge.

The Remedy

The court reiterated that reinstatement is the primary remedy for unfair dismissal unless continued employment would be intolerable or impracticable. Woolworths failed to demonstrate that.

The review application was dismissed. No order as to costs.

The Bottom Line

Sixteen years of service. A moment in a stockroom. Suspicion, but no proof. No loss. No concealment. And a Labour Court ruling that suspicion is not enough.

Woolworths tried to fire an employee based on what it thought she might have been doing. The court said: show us the evidence. They couldn’t. And Makhubela gets her job back.

{Source: IOL}

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