Can Suspicious Behaviour Lead to Fair Dismissal in South Africa?

Introduction

This was the central question before the Labour Court of South Africa in the recent case of Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration.

Background Facts

Ms Makhubela, a departmental coordinator employed by Woolworths for 16 years, was dismissed in October 2023 for alleged gross misconduct.

The charge stemmed from CCTV footage showing her in a high-risk stockroom area behaving “suspiciously.” Specifically, she was seen placing her hands between her thighs while wearing an apron.

Importantly:

• No item was seen being removed, concealed, or handled;
• No stock loss or shrinkage was identified.

When questioned internally, Ms Makhubela gave varying explanations, including:

• Adjusting her tights;
• Managing menstrual discomfort.

She later explained that cultural sensitivities made it difficult to discuss menstruation openly with male managers.

CCMA Arbitration Outcome

At arbitration, Ms Makhubela argued that her dismissal was based purely on unproven suspicion.

The arbitrator agreed and found:

• The employer failed to prove misconduct on a balance of probabilities;
• The charge of “suspicious behaviour” was vague and undefined in policy;
• The employee’s explanation was consistent with probabilities.

The arbitrator ordered:
✅ Reinstatement
✅ Six months’ back pay

Employer’s Review Application

Woolworths took the award on review, arguing that:

• The arbitrator unreasonably accepted inconsistent explanations;
• CCTV evidence and behavioural indicators showed probable concealment;
• The employee was dishonest, making reinstatement inappropriate.

Ms Makhubela opposed the application, maintaining that:

• Suspicion is not proof;
• No item was ever identified;
• Dishonesty was never part of the charge.

Labour Court’s Analysis

Applying the Sidumo test, the Court assessed whether the arbitrator’s decision was one that a reasonable decision-maker could reach.

1. Failure to Prove Misconduct

The Court emphasised:

• The charge was limited to “suspicious behaviour”, which was:
  • Not defined in policy
  • Not properly particularised
• CCTV footage showed no object at any stage;
• Employer witnesses conceded no item was visible.

2. No Evidence of Dishonesty

The employer’s argument that trust was destroyed failed because:

• Dishonesty was never proved;
• The employee’s differing explanations were reasonably attributed to:
  • Stress;
  • Embarrassment;
  • Cultural discomfort.

Her explanation regarding menstrual urgency was:

• Unchallenged;
• Plausible;
• Consistent with workplace realities.

3. No Evidence of Loss or Shrinkage

Crucially, the employer failed to present:

• Evidence of missing stock;
• Any financial loss;
• Any link between the employee and shrinkage.

Judgment and Outcome

The Labour Court held that:

• The arbitrator’s decision was reasonable and supported by evidence;
• The dismissal was substantively unfair.

Remedy: Reinstatement

The Court confirmed reinstatement under section 193 of the LRA because:

• No breakdown in trust was proven;
• No impracticability was established;
• The employee wished to return to work.

The award of reinstatement with six months’ back pay was upheld.

Key Takeaways for Employers

🔹 Define misconduct clearly
🔹 Rely on objective evidence—not suspicion
🔹 Ensure charges are properly framed
🔹 Lead evidence of loss or risk where relevant
🔹 Respect employee dignity and context

Key Takeaways for Employees

🔹 You cannot be dismissed based on suspicion alone
🔹 Employers must prove misconduct on a balance of probabilities
🔹 Reinstatement is the primary remedy in unfair dismissal cases

Frequently Asked Questions (FAQs)

1. Can an employee be dismissed based only on CCTV footage?

Yes—but only if the CCTV footage clearly proves misconduct. If the footage is ambiguous or inconclusive, as in this case, it is insufficient on its own to justify dismissal.

2. Is “suspicious behaviour” a valid ground for dismissal?

Not on its own. Employers must:

• Define the misconduct clearly
• Provide specific allegations
• Prove wrongdoing with evidence

Vague charges like “suspicious behaviour” are unlikely to withstand scrutiny.

3. What standard of proof applies in workplace misconduct cases?

Employers must prove misconduct on a balance of probabilities, meaning it must be more likely than not that the employee committed the misconduct.

4. Can suspicion ever justify disciplinary action?

Suspicion may justify an investigation, but not dismissal. Disciplinary action requires evidence, not assumptions.

5. What if an employee gives inconsistent explanations?

Inconsistencies do not automatically prove dishonesty. Courts will consider:

• Context (stress, embarrassment, cultural factors)
• Whether the core explanation remains plausible
• Whether dishonesty was formally charged

6. Must an employer prove financial loss or theft?

Not always—but in cases involving alleged theft or shrinkage, the absence of:

• Missing stock
• Financial loss
• Identifiable items

will significantly weaken the employer’s case.

7. When is reinstatement appropriate after unfair dismissal?

Reinstatement is the default remedy under South African law unless:

• The trust relationship is proven to be destroyed
• Reinstatement is impracticable
• The employee does not want to return

Conclusion

This judgment is a strong reminder that fairness, clarity, and evidence are essential in dismissal cases.
Employers must act on proven facts, not assumptions, while employees remain protected from arbitrary disciplinary action.

Article written by Craig Berkowitz
8 April 2026

Craig Berkowitz is a specialist labour lawyer and Acting Judge in the Labour Court of South Africa with extensive experience in CCMA arbitrations, disciplinary hearings and Labour Court litigation.

📞 083 453 1822
✉️ cblaw@netactive.co.za