Author: Nicky Hardwick
Mr. Ntholeng, a security officer placed by Securiforce at a Shoprite Checkers site, was dismissed after failing a polygraph test. Following the test, he admitted to accepting small amounts of money from customers to ensure their bicycles or wheelbarrows of beer weren’t stolen, conduct which was clearly not permitted. He also mentioned noticing damaged stock disappearing, which he assumed was being consumed by staff, but which he did not report.
Based on the contractual agreement between Securiforce and Shoprite, he was immediately removed from the client’s premises. Securiforce attempted to find him alternative placement, but none was available. He was then dismissed.
Interestingly, Securiforce did not pursue a dismissal for dishonesty, despite his admissions. Instead, they dismissed him for incapacity due to operational reasons, a hybrid ground not recognised under the Labour Relations Act (LRA).
At arbitration, the Commissioner held that the dismissal was procedurally fair but substantively unfair because incapacity cannot be dealt with under operational requirements. These are two distinct legal processes. Importantly, if the dismissal had been handled under operational requirements, Mr. Ntholeng would have been entitled to severance pay. To address this, the Commissioner awarded him two months’ remuneration. The Labour Court upheld this decision.
Lessons for employers
- Contractual obligations to clients can trigger operational requirements
Because Shoprite refused to allow Ntholeng back on site, Securiforce was faced with an operational requirement. When no alternative placement was found, termination followed. This is a textbook operational requirements dismissal, not incapacity.
- Don’t conflate incapacity and operational requirements
- Incapacity refers to illness or poor performance.
- Misconduct refers to dishonesty, theft, or breach of rules.
- Operational requirements refer to business or client demands that make continued employment impossible.
Mixing these categories leads to procedural unfairness, as happened here.
- Polygraphs are not decisive
A failed polygraph cannot stand alone as proof of dishonesty. What mattered here were Ntholeng’s own admissions. Yet despite clear evidence of wrongdoing, the employer didn’t pursue the misconduct route. Why not? We can only speculate.
- Severance obligations matter
The Commissioner and the Court agreed that once the dismissal was correctly characterised as an operational requirements dismissal, severance became payable. Employers cannot avoid severance by re-labelling the dismissal as incapacity.
Key takeaways
- This case is a strong reminder that dismissal labels matter. It’s imperative that employers select the correct legal ground and follow the right process.
- Contractual client demands often create operational requirements situations, which come with severance pay obligations.
- Even when dishonesty is admitted, employers must think carefully about whether to proceed under misconduct or operational requirements. Choosing incorrectly risks a finding of substantive unfairness.
Ultimately, the Court emphasised that fairness in process is just as important as the employee’s wrongdoing.
We’re here to assist should your organisation be facing a dismissal challenge. Contact our HR team today on [email protected].