Ster-Kinekor dismissed as Labour Court orders reinstatement of employee fired for eating popcorn

Employee fired over popcorn tasting must be reinstated, Labour Court rules.

Ster-Kinekor Theatres has lost its bid to overturn a ruling that found the dismissal of an employee accused of eating popcorn at work substantively unfair, after the Labour Court found that the cinema company had failed to prove that she breached a workplace rule.

Acting Judge M.J Motshekga dismissed Ster-Kinekor’s review application, upholding the Commission for Conciliation, Mediation and Arbitration (CCMA) arbitration award that ordered the reinstatement of employee Yvonne Mogano with retrospective effect.

The dispute stemmed from an incident on June 30, 2023, when Mogano, who worked as a multi-skilled employee at Ster-Kinekor’s cinema at The Zone in Rosebank, Johannesburg, was accused of eating popcorn in the kitchen while preparing it.

She had been employed by the company since May 23, 2014.

Following a disciplinary hearing on July 12, 2023, she was dismissed two days later after being found guilty of misappropriation of company assets, dishonesty and failure to adhere to company policy and standard practice.

Mogano challenged the substantive fairness of her dismissal at the CCMA.

During the arbitration, Ster-Kinekor’s complex manager, Tyran Naicker, testified that he found Mogano eating the popcorn she had been preparing.

According to his version, when he questioned her, she remained silent and continued eating.

He said that when he returned approximately 20 minutes later, he found her still eating the popcorn.

The company argued that its standard operating procedure for preparing popcorn did not allow employees to taste the product, as quality control was the responsibility of management.

However, Mogano disputed that she had been eating the popcorn, saying she had only put a few kernels in her mouth to check the salt levels.

She testified that in 2022, after a customer complained that the popcorn was too salty, she and Naicker had tasted it.

She said Naicker subsequently instructed her to taste the popcorn to check its salt levels, but not to eat it.

The commissioner accepted Mogano’s explanation, finding that Ster-Kinekor had failed to prove that she knew of a workplace rule prohibiting employees from tasting popcorn.

The commissioner also found that the company had not established that she had committed an act of dishonesty or breached its policies.

Ster-Kinekor subsequently approached the Labour Court, arguing that the commissioner had misconstrued the evidence and wrongly concluded that Mogano had tasted, rather than eaten, the popcorn.

In considering the review application, the court examined the company's standard operating procedure and the evidence presented during the arbitration.

Ster-Kinekor argued that although its procedure did not expressly prohibit employees from tasting popcorn, the prohibition could be inferred from the fact that it prescribed a fixed recipe and allocated quality-control responsibilities to management.

However, the court found that Naicker had failed to identify any provision in the procedure that specifically prohibited employees from tasting the popcorn.

He also conceded during cross-examination that he had previously tasted the popcorn and given some to Mogano to taste following the customer's complaint about excessive salt.

The judge found that knowing how to prepare popcorn did not automatically mean that Mogano knew tasting it for salt was prohibited.

The court further noted that the company's procedure required the complex manager and multi-skilled supervisors to conduct daily checks on popcorn preparation and yield tests.

However, it contained no provision expressly prohibiting employees from tasting the popcorn.

The judge emphasised that an employer relying on a workplace rule must prove both the existence of the rule and that the employee was aware of it.

"Where an employer relies on its procedure as the source of a rule, conduct in the course of that procedure which is not expressly prohibited cannot, by inference, be elevated into a disciplinary offence," the judgment stated.

The court also rejected Ster-Kinekor's argument that the commissioner had incorrectly preferred Mogano's version over that of Naicker.

Judge Motshekga said disagreement with a decision-maker's preference for one version of events over another was a matter for appeal rather than review.

The judge found that the commissioner's conclusion that Mogano had been permitted to taste the popcorn was supported by the evidence.

Ster-Kinekor also accused the commissioner of conducting the arbitration in a biased manner, alleging that he had disregarded evidence presented during re-examination and declined to take further notes.

However, the court found no evidence supporting the allegations.

The judge noted that the commissioner had initially questioned whether Ster-Kinekor's representative was introducing new evidence during re-examination but allowed the questioning to continue after receiving an explanation.

The court found that nothing in the arbitration record demonstrated that the commissioner had acted with bias or disregarded the company's evidence.

Ultimately, the judge concluded that the arbitration award was supported by the evidence and represented a decision that a reasonable commissioner could reach.

The Labour Court granted condonation for Ster-Kinekor's late filing of the review application, which had been instituted one day outside the prescribed six-week period.

However, the review application was dismissed. The court made no order as to costs.