A key issue in misconduct matters is distinguishing between mere wrongdoing and conduct that warrants dismissal. This distinction becomes especially important in cases involving petty misconduct, where the real question is not whether misconduct occurred, but whether dismissal is fair, proportionate, and justified.
Too often, employers adopt the view that “stealing is stealing” and insist on automatic dismissal for any form of dishonesty. South African labour law, however, requires a more nuanced, context-specific approach. Commissioners and courts do not only examine whether misconduct occurred. They also assess whether dismissal was an appropriate sanction after considering factors such as:
- The seriousness of the misconduct.
- Length of service.
- Disciplinary history.
- Consistency in discipline.
- The purpose of corrective discipline.
- Whether trust was genuinely destroyed.
The recent decision in Mpact Operations (Pty) Ltd v Metal and Engineering Bargaining Council and Others (C181/2024) [2026] ZALCCT 2, commonly referred to as the “toilet paper case”, serves as a sharp reminder that even minor misconduct allegations require employers to follow proper disciplinary processes and prove dismissal was justified.
The Facts
In Mpact, the employee had approximately 13 years of service and was dismissed after being found in possession of a roll of toilet paper while leaving the workplace premises. The employer alleged that the toilet paper belonged to the company and treated the matter as theft or unauthorised possession.
The employee denied stealing the toilet paper and maintained that he had brought it from home. Importantly, after inspecting the employee’s bag and finding the toilet paper, security personnel allowed the employee to leave with the item rather than confiscate or preserve it as evidence. The employer also failed to conduct a thorough investigation before instituting disciplinary action and proceeding with dismissal.
When the matter came before the Labour Court, the Court noted that theft requires proof of the intention to steal and found that the employer had failed to establish that intention. The judgment ultimately highlighted how the outcome may have differed had the employer properly investigated the matter, preserved evidence, and followed a procedurally sound disciplinary process.
Legal Framework
The Code of Good Practice guides fairness in misconduct dismissals and promotes corrective and progressive discipline.
The Code recognises that dismissal is generally inappropriate for a first offence unless the misconduct is sufficiently serious. Employers are expected to consider factors such as:
- The seriousness of the misconduct.
- The employee’s disciplinary history.
- Length of service.
- Mitigating circumstances.
- Consistency in discipline.
- Whether corrective discipline may still be effective.
The purpose of discipline is not purely punitive. It is intended to correct conduct and, where possible, maintain workplace standards. Dismissal must therefore remain a fair, proportionate, and operationally justifiable response.
Generally, misconduct related to theft or gross dishonesty is grounds for dismissal on a first offence; however, employers are still required to comply with the requirements of substantive and procedural fairness in dismissing such employees, and this is where employers often miss the mark.
Case Law
In Shoprite Checkers (Pty) Ltd v Mzolo JA49/14) [2015] ZALAC 23, the Labour Appeal Court confirmed that not every breach of a workplace rule automatically amounts to dismissible misconduct. The Court emphasised the distinction between wrongdoing and dismissible wrongdoing and cautioned against rigid “zero-tolerance” approaches, particularly in cases involving isolated or low-value infractions.
Similarly, in Xstrata South Africa v CCMA JA 50/2014 ZALAC Unreported, the Court reaffirmed the importance of progressive discipline and final written warnings. The Court confirmed that where employees persist in misconduct despite corrective interventions, dismissal may ultimately be justified because repeated misconduct demonstrates wilful disregard of workplace standards.
In De Beers Consolidated Mines Ltd v CCMA and Others JA68/99 [2000] ZALAC 10, the Court famously explained: “A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise.” Taken together, these judgments demonstrate that courts assess not only whether misconduct occurred, but whether dismissal was fair, proportionate, and reasonable in the circumstances.
Application to Employers
The Mpact judgment reinforces an important reality that employers often lose dismissal disputes not because misconduct did not occur, but because dismissal was disproportionate or the disciplinary process was poorly handled.
Many employers mistakenly assume that any dishonesty automatically justifies dismissal. However, courts continue to assess:
- The gravity of the misconduct.
- The value involved.
- The employee’s disciplinary history.
- Mitigating circumstances.
- Whether trust was genuinely destroyed.
The case also highlights how seemingly minor evidentiary failures can significantly weaken an employer’s case. In Mpact, the employer’s position was undermined because the allegedly stolen item was never confiscated or preserved as evidence. Similarly, employers frequently encounter avoidable problems arising from:
- Poor investigations.
- Weak evidence preservation.
- Unsigned warnings.
- Inconsistent sanctions.
- Procedural irregularities.
- Poorly drafted disciplinary notices.
The judgment serves as a reminder that disciplinary matters should never be approached emotionally or mechanically.
Practical Steps for Employers
Employers should:
- Investigate allegations thoroughly before instituting discipline.
- Preserve relevant evidence wherever possible.
- Distinguish between misconduct and dismissible misconduct.
- Apply progressive discipline where appropriate.
- Ensure disciplinary sanctions remain proportionate.
- Maintain consistent disciplinary standards across the workplace.
- Properly document counselling, warnings, and interventions.
- Avoid rigid or automatic “zero-tolerance” approaches without contextual assessment.
Petty misconduct should never simply be ignored. However, employers must ensure that disciplinary responses remain fair, defensible, and aligned with operational realities. Where corrective discipline has failed, and misconduct continues despite intervention, dismissal becomes easier to justify.
Key Takeaways / Conclusion
Petty misconduct remains misconduct and should not be overlooked. However, South African labour law requires employers to distinguish between wrongdoing and conduct that genuinely warrants dismissal.
Dismissal should never be based purely on moral outrage or a blanket application of workplace policy. Instead, it must be based on fairness, proportionality, operational requirements, and proper procedure. The Mpact judgment ultimately serves as a reminder that even seemingly straightforward misconduct cases require careful investigation, proper evidence management, progressive discipline where appropriate, and a contextual assessment of fairness.
Employers who approach discipline carefully and consistently place themselves in a far stronger position when disputes ultimately reach the CCMA or Labour Court.
Article By Nathan Campbell
Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)