A prank at work on a colleague which went wrong after the two pranksters were fired, had a positive outcome for the pair after the Johannesburg Labour Court ruled that while their dismissal was procedurally fair, it was substantively unfair.
The court ordered their employer, RSC Consulting Services, to reinstate the two, but to issue them with a warning for inappropriate conduct.
Mphiliseni Thabethe and Eugene Xokiso never dreamt that what they deemed to be a prank on a fellow worker would have such dire consequences. The two took her phone while she was looking away, a gesture they said which was meant to be a joke as they later returned it to her.
But in the end, they were accused of being thieves and dismissed for being in the unauthorised possession of a fellow employee’s cell phone.
They turned to the labour court after their employer fired them and after a CCMA commissioner ruled that the sanction meted out to them was fair.
But Acting Judge G Fourie now overturned that ruling, as he found that evidence indicated that the pair did pull a prank which went sour.
The applicants were employed by RSC Consulting Services, a temporary employment service provider, and were working in a client’s distribution centre at the time of the incident.
The court was told that Thabethe was leaving the canteen after lunch. He walked past a table where Busisiwe Gumede, a friend of his, was sitting. She was looking away and did not notice him.
Her cell phone was lying on the table. Thabethe decided to play a prank on Gumede, and took her cell phone off the table, without her noticing. After exiting the canteen, he bumped into another friend, Xokiso, who was going to the canteen.
Thabethe told Xokiso of his prank, and asked Xokiso to return the phone to Gumede. Xokiso couldn’t find Gumede in the canteen. He went looking for her at the section where she worked, but she wasn’t there.
A mutual colleague told Xokiso that Gumede was looking for her phone. Meanwhile Gumede had reported to the security office that she had lost her phone in the canteen, and asked them to check the video surveillance footage.
This showed Thabethe taking the phone. The security manager called Thabethe, who informed him that the phone was with Xokiso, who was looking for Gumede.
Xokiso was then phoned (on Gumede’s phone) and instructed to come to the security office. When he arrived he handed Gumede’s phone to her.
The court was told that neither Thabethe nor Xokiso had any intention to steal Gumede’s phone. Thabethe had merely played a prank on Gumede by taking her phone, and Xokiso had tried to return the phone to Gumede, but had been unable to find her.
The employer’s stance was that the employees committed misconduct, in that they were in unauthorised possession of another employee’s property, and that this warranted a sanction - being fired in this case.
It was found at arbitration that the two’s evidence that they intended to return the phone to Gumede was not persuasive. The commissioner earlier said it became clear from the evidence that they would not have returned the phone to its owner if it was not for the video footage which implicated them.
Judge Fourie now said the arbitrator’s finding that the applicants stole Gumede’s phone was perhaps understandable. But the finding of theft was made without a proper analysis of the evidence and was not supported by the evidence.
“In my view, the applicants’ version of a prank gone wrong is entirely credible and is the most probable version,” the judge said in overturning the arbitration ruling.
Pretoria News