Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC)

It is not the value of the item stolen that should determine whether dismissal for theft is fair; it is whether the employee's actions had the effect of rendering the continuation of the relationship of employer and employee intolerable.

Facts:

The employee was dismissed for stealing a can of Fanta. The Labour Appeal Court held that the dismissal was fair.

Extract from the judgment:

Theft by a servant of his master's goods has always been a ground for dismissal...Of course, it does not necessarily follow that, merely because at common law an employer has lawfully exercised his rights by dismissing his employee, the dismissal cannot constitute an unfair labour practice within the meaning of the Act [NOTE: under the old LRA the definition of unfair labour practice did not exclude dismissals)... It seems to me that the relationship between such an employer and such an employee is of such a nature that, for it to be healthy, the employer, must, of necessity, be confident that he can trust the employee not to steal his stock-in-trade. If that confidence is destroyed or substantially diminished by the realization that the employee is a thief, the continuation of their relationship can be expected to become intolerable, at least for the employer. Thenceforth he will, as it were, have to be continually looking over his shoulder to see whether his employee is being honest...

It was contended... that, because of the small value of the Fanta, respondent's actions should be regarded as petty or trivial pilfering rather than theft proper, if there is such a thing. In my view, the submission misses the point. As I have said, I regard the correct test to apply in these circumstances to be whether or not respondent's actions had the effect of rendering the continuation of the relationship of employer and employee intolerable.