Cashbuild employee reinstated after dismissal for R365 shortage while on final warning

Building materials retailer Cashbuild has failed in its attempt to overturn a ruling that found the dismissal of one of its employees substantively unfair.

The Labour Court in Johannesburg dismissed Cashbuild’s review application against an arbitration award that had reinstated system supervisor Lorraine Tsiri who was fired for authorising an incorrect petty cash payment.

Tsiri was dismissed in August 2022 after approving a payment of R2 847.14 instead of the correct amount of R2 482, a shortfall of R365.14. She had previously been given a final written warning for the same offence, and the employer's disciplinary code imposed the sanction of dismissal.

Cashbuild regarded the mistake as gross negligence and terminated her employment, citing her prior final written warning for a similar offence.

However, Tsiri challenged the dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA), arguing that Cashbuild had acted inconsistently. She said that other employees, including the store manager and a colleague, had previously been allowed to repay shortages instead of being disciplined.

The CCMA agreed and ordered Tsiri’s reinstatement in March 2023, prompting Cashbuild to approach the Labour Court to review and set aside the award.

Cashbuild argued that the arbitrator had relied on shifting comparator evidence, ignored the absence of documentary proof from Tsiri, failed to apply the correct legal test on inconsistency, and overlooked Tsiri’s prior final written warning. The company also complained that it had been unfairly prevented from leading evidence beyond the issue of consistency.

The Labour Court rejected all of these arguments.

Judge Kelsey Allen-Yaman found that Tsiri had clearly identified her comparators at the start of the arbitration, and that she had presented oral evidence explaining how other employees were allowed to repay shortages. The court held that this constituted evidence, even if no documentary proof was produced.

The judge also critiqued Cashbuild’s handling of the evidence, noting that the company initially neglected to address the named comparators and only did so after the arbitrator's prompting. In weighing the conflicting versions, the arbitrator was entitled to prefer Tsiri’s evidence and to regard the store manager as an unreliable witness.

Importantly, the court confirmed that once Tsiri had shown that she was disciplined while others were not, the onus shifted to Cashbuild to justify the differential treatment. As the company failed to provide any objectively justifiable reason for the disparity, the conclusion that the dismissal was unfair was reasonable.

The existence of a final written warning, the court held, did not rescue Cashbuild’s case, because it could not justify disciplining Tsiri when other employees were spared for the same type of misconduct.

“The inconsistent application of discipline was reasonably found not to have been justified,” the judge said, adding that the dismissal was correctly found to be substantively unfair.

Cashbuild was ordered to pay Tsiri’s legal costs, with the court noting that she had earned a modest salary and should not be burdened with the expense of defending the award.

sinenhlanhla.masilela@iol.co.za

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