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Fired after armed robbery in US - but what about SA?

Cape Town -  The plight of a pregnant employee who was fired after her firm lost $400 in an armed robbery has recently hit international headlines.

Here's the story: on March 31 a gun-toting robber jumped over the fast food outlet counter of a Texas fast food restaurant and demanded money from the manager. She opened the cash register granting the robber access to the money in the till. He made off with its meagre contents, leaving everyone shaken, including the pregnant store manager.
 
To add insult to her emotional injury, the employer then demanded that the manager repay the money stolen. She refused to pay the store the money taken by the robber, and was then dismissed.

Even in the United States, with its liberal employment laws, the circumstances surrounding the manager's dismissal have raised eyebrows.

But what fate would the employee have suffered, had the heist taken place in a South African setting?

Putting it in local context

Johan Botes, director, employment at Cliffe Dekker Hofmeyr, puts the case in South African legal context. He points out that local employees are protected against unfair dismissal.

Says Botes: "In terms of the Labour Relations Act, a dismissal is unfair unless the employer can show that it had a valid reason for the dismissal and that it followed a fair procedure before dismissing the employee." Employee misconduct is a valid reason for dismissal, says Botes.

Except for for limited permissible occasions, the Basic Conditions of Employment Act also stops employers from deducting money from a worker's salary.

If a worker causes loss or damage to an employer, the employer may get permission from the worker to deduct money from his or her pay, according to strict requirements laid down in the act. "These include that the loss or damage must have been due to the fault of the employee and that the amount deducted may not exceed more than the loss suffered," says Botes.
 
So if these principles are applied to the Texas case, the employee would have been within her rights to refuse consent to pay the money stolen to the employer, or to have the money deducted from her salary.

The employer would not have been entitled to use such a refusal as ground for dismissal, says Botes. Under South African law, a boss who wants to recover losses suffered at the hands of a worker who won't pay up is forced to issue a summons for the money in civil proceedings.

An employer may bring a contractual claim for monies lost to the labour court. And according to the Pension Funds Act, an employer can also request the trustee of a pension fund to retain pension monies due to the worker if he or she was dishonest, committed fraud or theft and if the worker has either admitted this in writing, or a court has issued judgment in the matter.  

Workplace rules must be followed

The employer could have taken disciplinary action and even fairly dismissed the employee in our jurisdiction if she did not follow the applicable workplace rules. In the case of the fast food restaurant, the workplace rule is reported to be that the manager must ensure that the cash in the register does not exceed a certain amount.

"This type of workplace rule is common in retail outlets and is aimed at minimising the loss that may be suffered in the event of a robbery," says Botes. The manager stated that the restaurant was busy, and so she was unable to check and empty the cash register in time.

Had the incident taken place in a South African setting, the Commission for Conciliation, Mediation and Arbitration would likely have agreed with the employer that the manager was negligent in not making sure that the cash register was regularly checked and emptied to prevent the cash from going over the stipulated level.

"An employer is entitled to lay down fair and valid workplace rules that are aimed to ensure the smooth running of its business. Employees failing to abide by these rules are at risk of disciplinary action that could include dismissal," says Botes.
 
The employee's pregnancy further complicates the issue as South African workers are protected against discrimination based on factors that include pregnancy. But the facts of the Texas matter do not suggest that the manager's pregnancy played a role in her dismissal, says Botes.

"Had it been the case and the dismissal occurred in a South African workplace, the employee would have been able to claim that her dismissal was automatically unfair. If successful, she would have been entitled to reinstatement, re-employment or compensation of up to a maximum of 24 months' remuneration," says Botes.
 
 

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