Ster-Kinekor Theatres failed in its attempt to overturn a court ruling that found the dismissal of an employee accused of consuming popcorn at the workplace to be fundamentally unfair. The labour court determined that the cinema company could not prove that the employee violated workplace rules.
Judge M. J. Motchega dismissed Ster-Kinekor's appeal, upholding the arbitration award from the Commission for Conciliation, Mediation and Arbitration (CCMA), which ordered the reinstatement of employee Ivonne Mogano with retroactive effect.
The conflict arose following an incident on June 30, 2023. Mogano, who worked as a multi-functional employee at the Ster-Kinekor theatre in The Zone in Rosebank, Johannesburg, was accused of eating popcorn in the kitchen while it was being prepared.
She had been employed by the company since May 23, 2014. After a disciplinary hearing on July 12, 2023, she was dismissed two days later, having been found guilty of misappropriating company assets, dishonesty, and non-compliance with company policy and standard practice.
Mogano challenged the substantive fairness of her dismissal at the CCMA.
During the arbitration, Ster-Kinekor's general manager, Tairan Naiker, testified that he discovered Mogano eating popcorn that she had prepared. According to him, when he asked her questions, she remained silent and continued eating. He stated that he returned approximately 20 minutes later and saw that she was still eating popcorn.
The company argued that its standard operating procedure for making popcorn did not allow employees to sample the product, as quality control was the responsibility of management. However, Mogano countered, claiming she was not eating the popcorn but merely putting a few kernels in her mouth to check the salt level. She testified that in 2022, after a customer complaint about the excessive saltiness of the popcorn, both she and Naiker tasted it. She added that subsequently, Naiker instructed her to taste the popcorn to check the salt level, but not to eat it.
The Commissioner accepted Mogano's explanation, finding that Ster-Kinekor failed to prove that it knew of the workplace rule prohibiting employees from sampling popcorn. The Commissioner also concluded that the company had not proven that dishonesty or policy violation occurred.
Subsequently, Ster-Kinekor appealed to the Labour Court, arguing that the commissioner had misinterpreted the evidence and erroneously concluded that Mogano was tasting, not eating, the popcorn.
Reviewing the appeal, the court examined the company's standard operating procedure and the evidence presented during the arbitration. Ster-Kinekor insisted that although its procedure did not explicitly forbid employees from tasting popcorn, this prohibition could be inferred from the fact that it specified a fixed recipe and placed quality control responsibilities on management. Nevertheless, the court found that Naiker could not point to any provision in the procedure that directly prohibited employees from tasting popcorn.
He also admitted during cross-examination that he himself had previously tasted popcorn and gave some to Mogano for tasting after a customer complaint about excessive salt. The judge ruled that knowledge of how to make popcorn does not automatically mean Mogano knew that tasting it for salt was forbidden.
The court also noted that the company's procedure required the general manager and multi-functional supervisors to conduct daily checks of popcorn preparation and output tests. However, it lacked a clause directly forbidding employees from tasting popcorn. The judge emphasized that an employer relying on a workplace rule must prove both the existence of that rule and the employee's awareness of it.
The court's decision stated: 'When an employer relies on its procedure as the source of a rule, behaviour within that procedure that is not directly prohibited cannot be elevated to a disciplinary offence by inference.' The court also rejected Ster-Kinekor's argument that the commissioner incorrectly favored Mogano's version over Naiker's.
Judge Motchega stated that disagreeing with the decision-maker's preference for one version of events over another is a matter of appeal, not review. The court concluded that the commissioner's finding that Mogano had the right to taste popcorn was supported by the evidence.
Ster-Kinekor also accused the commissioner of conducting the arbitration unfairly, alleging that he ignored evidence presented during re-examination and refused to take further notes. However, the court found no evidence supporting these allegations. The judge noted that the commissioner initially questioned whether the Ster-Kinekor representative was introducing new evidence during re-examination but allowed questioning to continue after receiving explanations. The court found that nothing in the arbitration record indicated bias on the part of the commissioner or disregard for the company's evidence.
Ultimately, the judge concluded that the arbitration award was substantiated by evidence and represented a decision that a reasonable commissioner could have made. The Labour Court granted an extension for the late filing of Ster-Kinekor's appeal, which was filed one day past the stipulated six-week deadline. However, the appeal was dismissed. The court made no ruling on costs.