A contract cleaner eats chocolate and looses contract for the company. Should she be dismissed?

[Patk]

I have an interesting situation to decide on this week.
A contract cleaning company has a staff member who services a number of apartments on a regular basis. This staff member was liked by the client manager and he gave her authority to eat from his personal cupboards. She was also asked to cook for him and according to her, was authorised to take leftovers as and when these where available.
During last week The client manager contacted the company and advised that he was cancelling all cleaning arrangements as he had found that the cleaner had taken and eaten a slab of his personal chocolate and that in his eyes she had broken the trust relationship and that as a result the companies services would no longer be required.

Questioning of the cleaner confirms that she did take and eat the remainder of a slab of chocolate. She has apologised the the client manager, but he remains unrelentant in his decision to terminate the contract with the company.

I chaired the disciplinary hearing and found the cleaner guilty of the charge. She also pleaded guilty to the charge.

My dilemma is as follows: Is the offence serious enough to warrant a dismissal? There is no evidence to confirm the limits to which she was authorised to go to. Should she have been aware that the taking of chocolates was a step too far? Should the Client company have advised her employees of their concerns prior to terminating the contract?

She has previously been corrected via disciplinary action with similar offences, but in that instance she was aware of the limitations of taking articles for lunch such as bread and jam and tea etc.

The other aspect to be considered is that her employment with the company was spread over a number of customers, but the loss of this one customer now reduces her work requirement to approximately two and half days per week.

Her employer now faces a financial expense that it should not be expected to carry in the 2+ odd days when they cannot utilise her services.

Another aspect to consider is the motive of the client manager in terminating the contract. Was the offence of the cleaner the real reason for the contract termination or a good excuse? we will never know!

Do I recommend a dismissal? If this was referred to the CCMA would a commissioner find that the dismissal was substantively fair?

Do I recommend the she be issued with a final written warning and advise as a result of her actions that the company has experienced loss of company image and financial loss, that her hours of work be reduced to compensate for the loss of business?

Your thoughts would be appreciated.

Thank You
Pat Kelly

[pmbguy]

Another aspect to consider is the motive of the client manager in terminating the contract. Was the offence of the cleaner the real reason for the contract termination or a good excuse? we will never know!

It sounds to me as an arbitrary cause for dismissal. I suspect the client used the “chocolate incident” to get rid of her perhaps because he/she no longer can afford the service she (cleaning service) renders. He/she felt it necessary to find an excuse, perhaps too ashamed to cancel the contract fearing people may think they are not doing well financially. Perhaps they found a cheaper cleaning service. This is the only way I can logically articulate this in my mind.

I would certainly not recommend dismissal.

[Dave A]

It must be tough to sum up a hearing in a single post like that. Nuance is so important in these things.

I do have some comments that might help narrow down the issues though. So often one has to get rid of the red herrings to get to the nub of the case -

The client manager contacted the company and advised that he was cancelling all cleaning arrangements as he had found that the cleaner had taken and eaten a slab of his personal chocolate and that in his eyes she had broken the trust relationship and that as a result the companies services would no longer be required.

That certainly would be grounds for an instruction to replace the cleaner. Ordinarily on its own, it shouldn't be the cause for terminating the services of the company though. There's likely more to the termination of contract part of this.

Should the Client company have advised her employees of their concerns prior to terminating the contract?

Some contract cleaning companies have clauses in their contract insisting on notification and an opportunity to redress, and some operate on month to month contracts quite intentionally as part of their marketing and client acquisition strategy. Ultimately it's a strategic business decision that in my view the employee has no part in making, and therefor should not be held personally responsible for the consequences thereof.

The company can sue the client if the client is in breach of the contract (they probably won't if the sum is trivial, but that's their problem), and if the client isn't in breach of contract and this was the only incident - well, the company should probably look at their contract if being left vulnerable in this way isn't part of their business strategy.

Unless there are more linkages between the performance of the company in the eyes of the client and the employee in question, you probably need to disregard that this offence resulted in termination of the contract when it comes to the disciplinary side of things.

She has previously been corrected via disciplinary action with similar offences

Now that seems very relevant to your recommendation, and would need to be examined very closely. Also the employment contract, company policy, any precedents within the company (consistency), and the training (and retraining) should be fully understood.

In my company this would be grounds for instant dismissal on the first incident. If it's not yours, it isn't yours to take. Period. And every member of my staff know this in no uncertain terms. Based on your post, it seems this line is nowhere near as clear cut and sharply defined in this case though...

The other aspect to be considered is that her employment with the company was spread over a number of customers, but the loss of this one customer now reduces her work requirement to approximately two and half days per week.

Red herring when it comes to the recommendation. If she's dismissed, they'll have to place someone else there. If she isn't, they're faced with a decision as to how to proceed for operational reasons. Neither consequence has a bearing on your recommendation on this particular incident.

I hope that helps some.

[Patk]

I want to thank all those who input to this situation. I believe that i am now better able to resolve this issue and will keep you advised as to the outcome.
Your responses are most appreciated.
Pat Kelly

[Citizen X]

I have an interesting situation to decide on this week.
This staff member was liked by the client manager and he gave her authority to eat from his personal cupboards. She was also asked to cook for him and according to her, was authorised to take leftovers as and when these where available.
During last week The client manager contacted the company and advised that he was cancelling all cleaning arrangements as he had found that the cleaner had taken and eaten a slab of his personal chocolate and that in his eyes she had broken the trust relationship and that as a result the companies services would no longer be required.

The transgression or offence given the circumstances as described is a petty offence. Should it transpire in any employment setting regardless of whether a national chain is contracting to a cleaning company for all its branches or it takes place on a more domestic level as in the individual case of an employer and a domestic worker.
The golden rule when deciding on a penalty is to accept that the penalty must not be too harsh for the offence itself. One then has to consider the disciplinary record[you do make mention that she/he was disciplined for similar offences] and length of the employee’s service thus far.
You also consider the type of offence, take late coming for instance. You deal with it over a period of time. This offence would wrongly be classified as theft as I’m immediately looking at the criminal law aspects of it. If charged this matter would not even be put on the roll by the prosecutor as it’s very petty[the chocolate bar cost less than R200, there’[s a difference between a charge of R200 and R200 000 000].
So the only offence I can see is unauthorized consumption of company consumables. One also has to consider that this conduct was allowed to a greater or lesser extent, a corporate culture was thus created. I may work for an office where the company allows all who enter its premises to use its canteen facilities.
Assuming that this employee who works for a cleaning contracting party, is by default a member of a union, has worked for some time for the company in a corporate culture where eating of the companies refreshments is allowed in the canteen and on a more personal level in your house, you may be one that does allow your domestic worker to freely have their meals from whatever resource you have. In this case if the employee has only eaten a chocolate bar, I’d say a simple counseling session is a very appropriate and fair sanction. In this counseling session the employee is simply told that he she may eat of a certain selection of refreshments and otherwise but not particular ones

[sterne.law@gmail.com]

My concern is if an offence was committed.
Given that the client gave permission, and as we understand it, has never withdrawn it, has she done wrong?
The warnings are related to other clients, and there is no doubt that taking/eating stuff is wrong (and quite possibly dismissable offences at first instance, even if it was a slice of bread. Particularly concerning the nature of the relationship and service, trust and personal belongings are sensitive areas. Contracts and word of mouth are inextricably linked to these criteria.) Returning to the prior warnings, there she broke a rule, knowingly, but in the current case is not breaking a rule.
However, the company may have a rule, that despite what a client says, you must behave in a certain way, ( e.g. a restaurant rule is that even if client buys you a drink, you may not drink it.) This would then alter the pattern of thought.

Regarding losing the contract, ignoring the root cause, for sake of argument, I can't hold the employee liable if a client decides, for whatever reason, to terminate a contract. Normal operation requirement procedures would apply. (There may, or may not, be a clause in employee contract, that employment is dependent upon a specific contract.)

[tec0]

my 2cents

I was also thinking along those lines. See company policy is important especially in a case like this one. If you don't have a proper policy to govern simple rules regulations within the employee contract you cannot enforce it. A lot of companies think they can make up the rules as they go along. This never works... Also it is a good idea to explain to the customer that you have rules regarding your staff so that the customer doesn't overwrite your policy and create an unhealthy behaviour. You can just add it under your terms and conditions section of your contract.

With a proper policy you have grounds for disciplinary action. Without it, you will get a lot of trouble from labour protection entities. Also consider your contract duration. Labour brokers use contract duration as a controlling measurement. If a worker performs well they get a renewal, if a worker performs badly they don’t get a renewal. It also eliminate a prolonged and painful dismissal process.

[Citizen X]

my 2cents

I was also thinking along those lines. See company policy is important especially in a case like this one. If you don't have a proper policy to govern simple rules regulations within the employee contract you cannot enforce it. A lot of companies think they can make up the rules as they go along. This never works... Also it is a good idea to explain to the customer that you have rules regarding your staff so that the customer doesn't overwrite your policy and create an unhealthy behaviour. You can just add it under your terms and conditions section of your contract.

With a proper policy you have grounds for disciplinary action. Without it, you will get a lot of trouble from labour protection entities. Also consider your contract duration. Labour brokers use contract duration as a controlling measurement. If a worker performs well they get a renewal, if a worker performs badly they don’t get a renewal. It also eliminate a prolonged and painful dismissal process.

To add further perspective, one must also consider whether the consumable i.e. the chocolate was part of inventory. If one has a supermarket and sells consumables but makes it clear that no staff may remove stock from the shelves and consume it, then this would be an offence.

In SA Commercial Catering & Allied Workers Union obo Bolashe and Pinzon Traders (PTY) ltd, an employee was dismissed for petty theft for eating some bread which was returned by a customer at the bakery where he worked. The company did have a policy that stated that perishable items should not be resold or given to staff for health reasons, this bread must be given to the pigs literally at the farms.
So this employee for whatever reason decided to eat some bread from the collection of other disposable perishables just on its way to the pig farm.

The court found that dismissal as a sanction was found to be too harsh in the circumstances
A further LRA element is awareness of the rule broken, the employee must be aware. What if this employee says, ‘Well, I was allowed to make myself tea, coffee and sandwiches from the company fridge and I was also allowed to eat all the left overs, so when I ate the chocolate, I didn’t realize that I was not allowed to do so.’

How then do you reasonably respond to this declaration?
The court by default will have to balance the common law duty of the employee to act in good faith and that employers must only use dismissal as a last resort.

The situation would be wholly different if the chocolate is part of a retailers inventory and for sale to the public by display on various shelving. If an employee take an item from this shelf and eats the item, then it can’t be said that the employee didn’t know. Such rules are so obvious they needn’t be formally mentioned.

The point of departure is always consider each case on its own merits and circumstances

[Patk]

I am pleased to advise that i have arrived at a decision and have notified the accused accordingly.

Briefly my decision is as follows:

She is to be issued with a written warning for her actions. In order for the company not to be responsible for the full financial burden, the employees hours are to be cut to an as required basis until such time as business is grown to facilitate full employment again.

The company is going to lodge a plea with the client manager, pointing out the inconsistency which he has allowed to happen and the subsequent impact on the company and employee.
If this plea is accepted the cleaning staff may undergo a restructure with a reallocation of staff in order to cover the client with different staff.

Hopefully this decision will result in all parties reflecting on their actions and preventing similar situations from occurring in the future and the impact be short lived.

Once again I would like to thank all those who provided input for me to consider.

[Hermes14]

Pakt -

This staff member was liked by the client manager and he gave her authority to eat from his personal cupboards.

Vanash -

This offense would wrongly be classified as theft as I’m immediately looking at the criminal law aspects of it. If charged this matter would not even be put on the roll by the prosecutor as it’s very petty[the chocolate bar cost less than R200, there’[s a difference between a charge of R200 and R200 000 000].

Vanash the South African law defines theft as the unlawful and intentional removal of movable property.
If the manager had not given her permission to eat from his personal cupboard & the matter went to court The cleaner would have been found guilty.
The problem over here is the manager gave his consent for her to remove (eat) from his cupboard & therefore would be thrown out of court.
If the matter goes to the CCMA her union representative will argue the same point.

Let's say the client's manager does want to press charges.
The commissioner of Oath that is taking the statement on behalf of the manager is supposed to state at the bottom of the statement “I have not given …. (the accused) permission to take anything from my cupboard”.
The client's manager would not be able to sign the statement because he would be making a false statement under Oath.


A few years ago I was the security manager at a large corporate company where one manager complained that milk was being stolen from their fridge.
During my investigation I found that another junior manager had given the cleaner permission to take any milk that was left in the fridge on a Friday afternoon as it would be sour by the Monday morning.
I called both managers together & they sorted the problem out.

If I was Pakt I would contact the “client's”manager & inform him of the situation that he has put the cleaning company in.
I would suggest that the cleaner is removed from this site & replace with another cleaner who is unknown to this cleaner.
I would then rewrite the job description & in the job description state that anything removed from the client's premises without written consent will be considered as theft & result in immediate dismissal.

[Citizen X]

Pakt -

Vanash -

Vanash the South African law defines theft as the unlawful and intentional removal of movable property.
If the manager had not given her permission to eat from his personal cupboard & the matter went to court The cleaner would have been found guilty.
The problem over here is the manager gave his consent for her to remove (eat) from his cupboard & therefore would be thrown out of court.
If the matter goes to the CCMA her union representative will argue the same point.

Let's say the client's manager does want to press charges.
The commissioner of Oath that is taking the statement on behalf of the manager is supposed to state at the bottom of the statement “I have not given …. (the accused) permission to take anything from my cupboard”.
The client's manager would not be able to sign the statement because he would be making a false statement under Oath.


A few years ago I was the security manager at a large corporate company where one manager complained that milk was being stolen from their fridge.
During my investigation I found that another junior manager had given the cleaner permission to take any milk that was left in the fridge on a Friday afternoon as it would be sour by the Monday morning.
I called both managers together & they sorted the problem out.

If I was Pakt I would contact the “client's”manager & inform him of the situation that he has put the cleaning company in.
I would suggest that the cleaner is removed from this site & replace with another cleaner who is unknown to this cleaner.
I would then rewrite the job description & in the job description state that anything removed from the client's premises without written consent will be considered as theft & result in immediate dismissal.

This is why I've already summed it as follows:

In SA Commercial Catering & Allied Workers Union obo Bolashe and Pinzon Traders (PTY) ltd, an employee was dismissed for petty theft for eating some bread which was returned by a customer at the bakery where he worked. The company did have a policy that stated that perishable items should not be resold or given to staff for health reasons, this bread must be given to the pigs literally at the farms.
So this employee for whatever reason decided to eat some bread from the collection of other disposable perishables just on its way to the pig farm.

The court found that dismissal as a sanction was found to be too harsh in the circumstances
A further LRA element is awareness of the rule broken, the employee must be aware. What if this employee says, ‘Well, I was allowed to make myself tea, coffee and sandwiches from the company fridge and I was also allowed to eat all the left overs, so when I ate the chocolate, I didn’t realize that I was not allowed to do so.’

How then do you reasonably respond to this declaration?
The court by default will have to balance the common law duty of the employee to act in good faith and that employers must only use dismissal as a last resort.

The situation would be wholly different if the chocolate is part of a retailers inventory and for sale to the public by display on various shelving. If an employee take an item from this shelf and eats the item, then it can’t be said that the employee didn’t know. Such rules are so obvious they needn’t be formally mentioned.

The point of departure is always consider each case on its own merits and circumstances