FIRED FOR EATING TWO SLICES OF CARROT
Dismissal – Consumption of company stock – Two slices of carrot eaten by employee at Nando’s – Dishonesty – Whether trust relationship irretrievably broken down – Zero tolerance policy to authorized consumption – Dismissal substantively unfair.
Nando’s Scottsville v CCMA [2022] D06-2019 (LC) at [72]-[81]
Mr Gwala worked at the Nando’s at Scottsville where he was a front griller and also a Community Forum Representative. He took two slices of carrot from the pan of hot water and ate them. This was discovered some time later during an investigation regarding a different issue. At a disciplinary hearing he was charged with gross misconduct, being unauthorised consumption of company stock, in that “you were dishonest by consuming company stock being vegetables whilst on duty”. The chairman of the hearing found him guilty and that he should be summarily terminated. Nando’s notified Mr Gwala of his dismissal the next day. At the CCMA the commissioner found the dismissal substantively unfair and awarded reinstatement. Nando’s approached the Labour Court to review and set aside this award.
Allen-Yaman AJ discusses Nando’s disciplinary code which prohibits the unauthorised consumption of stock and categorises it as a Level 4 or very serious offence relating to theft, unauthorised possession or fraud; Mr Gwala’s explanation that he had tasted the carrots to see if they were of a suitable standard to be served to the customers; his contention that when he took them out they were not cooked right and had ice in the middle and that he drew the attention of a colleague to the temperature of the carrots; the intention to deprive Nando’s of its property; whether dishonesty was established; whether dishonesty is an inherent element of unauthorised consumption; the Grilled Roast Vegetables Procedure Manual being silent on the issue of tasting vegetables; the contention by Nando’s that the trust relation was broken beyond repair by the employee’ dishonesty; and zero tolerance policies.
The court finds that the commissioner’s findings were one of a reasonable decision maker and the award is not susceptible to review. The application is dismissed.
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THE BLOODY HAND DOES NOT INHERIT
Wills and estates – The bloody hand does not inherit – Widow found unworthy of inheriting from estate – Planned killing of husband and forged documents – Developments in case law discussed.
Smit v The Master, Western Cape [2022] 20960-2019 (WCC)at [173]-[183]
Ms Smit, the widow, initially approached the court on an urgent basis and sought an order that the Master accept a document as the last will and testament of the deceased, Mr Smit, in terms of s 8(4) of the Administration of Estates Act 66 of 1965. The application was opposed by the two daughters of the deceased (from the first marriage) on the basis that the document was fraudulent, neither drawn by their late father, nor signed by him.
Mantame J discusses the referral for oral evidence; the number of times Ms Smit changed her attorneys and the ensuing delays; applications for postponement; the version of Ms Smit that intruders gunned down the deceased; the background facts of the fatal shooting of Mr Smit; the circumstances of Ms Smit discovering the document donating the vast portion of the estate and trusts to her and appointing her as executrix; the testimony of the investigating officer that Ms Smit and two security personnel of the family have been charged for the deceased’s murder, fraud, illegal possession of firearms and defeating the ends of justice; the evidence of the police analyst and expert in forgeries and alterations; and the evidence of the handwriting expert.
The court discusses from para [123] the case law on the grounds that a court would find a beneficiary unworthy to inherit; an article in The South African Law Journal on whether it is permissible to extend the grounds of unworthiness; murder of next of kin; the onus of proof required; whether Ms Smit should be declared unworthy of taking any benefit, including her right to claim maintenance; and that the maxim “de bloedige hand en neemt geen erffenis” was raised before the start of the criminal trial and without a finding of guilt.
The inference to be drawn from the evidence was that Ms Smit forged three documents and planned, and was instrumental in, the killing of the deceased, to take control of the entire estate. She was unworthy to inherit. The application is dismissed. The purported will that Ms Smit stated was signed by the deceased is declared null and void.
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MOTHER’S CAREGIVING SERVICES FOR BRAIN-DAMAGED CHILD
Medical negligence – Child born with cerebral palsy – Claim for past caregiving services rendered by mother – Child entitled to a fair award for the caregiving services rendered.
BN obo NN v MEC for Health, Gauteng [2022] ZAGPPHC 251 at [13]-[29]
Plaintiff was admitted at Pholosong Hospital in Gauteng to deliver her baby. She later claimed damages from the MEC and contended that the labour process was unduly prolonged which led to the child suffering brain damage and cerebral palsy. At the end of the liability trial, the MEC was declared liable for payment of 100 % of the proven or agreed damages. The plaintiff contends that the child is permanently disabled to the extent that he will require permanent assistance by skilled personnel. He has required caregiving from the time of his birth, which was rendered to him by the plaintiff, and will require full time caregiving for the rest of his life. Plaintiff’s claims fair compensation for the caregiving services she rendered to the child from his birth beyond the amount of care caregiving which a mother would normally render to a young child.
Mabuse J discusses the expert reports that the mother has had to make considerable additional sacrifices to care for the child, given his severe brain damage and disability; the case law including those where a wife receives compensation for caring for an injured husband instead of a nurse; the defendant’s reliance on the case of PM obo TM v The MEC for Health, Gauteng where such a claim was not allowed and the court expressed difficulty with a parent being compensated for caring for his or her own child; the differences between this case and the PM case; and whether the claim for caregiving services belongs to the mother in her personal capacity or to the person who has been injured. There is enough authority, both in the United Kingdom and in South Africa, that in these circumstances the child, and not his mother, should be entitled to a fair award for the caregiving services rendered to him so far by his family. See also para [31]-[32] on the experts’ joint minutes and the defendant’s counsel’s complaint about missing evidence.
The MEC is ordered to pay the amount of R571, 879 to the plaintiff in her representative capacity, in respect of the claim for past caregiving services.
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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