Collective Misconduct in the Workplace: Is 'Team Misconduct' 'Collective Guilt' in Disguise?

• Jurisdiction: South Africa
• Date: 16 August 2019
• Published date: 16 August 2019
• Author: Lindiwe Maqutu
• Citation: (2014) 25 Stell LR 566
• Pages: 566-579

566

COLLECTIVE MISCONDUCT IN THE

WORKPLACE: IS “TEAM MISCONDUCT”

“COLLECTIVE GUILT” IN DISGUISE?

Lindiwe Maqutu

BA LLB LLM

Lecturer, College of Law & Management Studies, University of KwaZulu-Natal

1 Introduction

The retail sector su ffers from ongoing problems with u naccounted for

stock losses. Many methods have been devi sed to combat or at the very least

limit stock losses, the mai n cause being theft in t he form of shoplifting by

customers or inter nal theft perpetrate d by or with the help of the employees of

the retail enter prise. Employees may steal the actual merchandi se procured by

the company for resale or the money that cust omers have paid in exchange for

the goods. A global survey of retail shrinkage estimates that this phenomenon

cost retai lers worldwide approximately R751.1 billion in 2010 ($107.3 billion),

while the retail shrinkage in South Africa alone was reported to be R5.1 billion

in that year.1 T he survey revealed that i n South Africa t heft by employees

accounted for 37% of retail shrinkage.2 Global retail shrinkage has since

risen to $128.5 billion in the 2013/2014 survey.3

Frequently, despite the implementation of appropriate loss prevention

strategies in the workplac e, shrink age remains high, t hreatening t he retail

enterprise. T he employer is often unable to identify the method of theft or catch

the culprits respon sible for internal theft.4 In orde r to protect their busines s

interests, some employers have implemented workplace policies wh ich deem

shrink age that exceeds a cert ain percentage of sales unacceptable, and which

hold the entire contingent of employees responsible for the loss.5 Follow ing

the development of the concept of “team misconduct” for stock loss in an

earlier arbitrat ion award, the Labou r Appeal Court (“LAC”), in The Foschini

1 J Bamfield “T he Global Retail Thef t Barometer 2010” (19-10-2010) ePublish4me 1, 76-77 ttp://

go epublish4me com /grtb-2010/10018158> (accessed 09-01-2015); J Hunt “Lock up retail crime” (09-

2011) Super market.co.za 11 1%20

Loss%20Cont rol pdf> (access ed 9-01-2015)

2 Bamfield “The Glo bal Retail Theft Barometer 2010” (19-10-2010) ePublish4me 76-77; Hunt “Lock up

retail cri me” (09-2011) Supermarket.co.za 11

3 R A rora, A Kh an & E Deyle “ The New Barome ter: A study of the Cost of Merchan dise T heft a nd

Merchandise Availability for the Global Retail Industr y 2013-2014” (10-2014) NetMap Analytics

16 4 pdf > (accessed

10-01- 2015)

4 A Landman “Team Misc onduct – The Final Solution to Shr inkage?” (2001) 17 Employment LJ 3;

PAK le Roux “Grou p Misconduc t: When will D ismissal b e a Fair Remedy for Employers?” (2011) 20

Contemporary Labour Law 101

5 SACCAWU v Pep Stores 1998 6 BALR 719 (CCMA); SACT U obo Motaung & others/Pep S tores 2001 8

BALR 905 (CCMA); SAGAWU obo Mdiy a & others/Pep Stores ( Pty) Ltd 2003 10 BALR 1172 (CCMA)

(2014) 25 Stell LR 566

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