Ster-Kinekor Theatres (Pty) Ltd v Mogano & others [2026] ZALCJHB 409

Date of Judgment & Seat of Court: 23 October 2026, Labour Court, Johannesburg

Case No: JR2334/23

Name of Judge(s): Motshekga AJ

Summary of Factual Matrix:

Ms Mogano, a multi-skilled employee at Ster-Kinekor's cinema in Rosebank since 2014 whose duties included preparing popcorn, was dismissed in July 2023 for misappropriation of company assets, dishonesty and failure to adhere to company policy, the employer alleging that the complex manager had found her eating popcorn in the kitchen. Her version was that she had put a few kernels in her mouth to check the level of salt, as the manager had told her to do after a customer complained in 2022 that the popcorn was too salty. The CCMA commissioner preferred her version, found that neither dishonesty nor a rule prohibiting tasting (or her knowledge of one) had been proved, held the dismissal substantively unfair and ordered retrospective reinstatement.

Ster-Kinekor applied, one day late, to review the award, contending that the commissioner had misconceived the evidence by turning the absence of a prohibition into an authorisation to taste, and that he had conducted the arbitration in a biased manner. The employee opposed but did not file heads of argument or appear at the hearing.

Summary of Findings:

[11] ‘The standard of review is well established: is the award one that a reasonable decision-maker could not reach?[3] In applying that standard, the Court considers the award as a whole, with reference to the totality of the evidence before the Commissioner, and errors of fact are of consequence only where they render the outcome unreasonable.[4]’

[13] ‘The Commissioner found that “there is no proof that she breached a policy or committed an act of dishonesty”. In its founding affidavit, Ster-Kinekor characterises the misappropriation as “grossly dishonest”. Resultantly, the Commissioner’s finding that no dishonesty was proven disposes of the charge of misappropriation as framed. In response to the Court’s enquiry on the point, Ms Black confirmed that its submission was confined to the narrow contention that the Commissioner had misconceived the evidence. Consequently, the finding on dishonesty is not a matter for determination by this Court.’

[14] ‘On whether Mogano ate or tasted the popcorn, the Commissioner was presented with two mutually destructive versions, in that Naicker testified that he twice found Mogano with “more than a mouthful”, while she maintained that she put a few kernels in her mouth to ascertain the level of salt. Having weighed the two versions, the Commissioner found Mogano’s version to be more probable, holding that “I believe that the respondent allowed the applicant to test the level of salt from popcorn, mainly to avoid the recurrence of the incident where a customer complained of too salty popcorn”. Ster-Kinekor’s complaint is that Naicker’s version ought to have been preferred. In this regard, the Court put to Ms Black that disagreeing with the decision-maker’s preference for one version over the other is a matter for appeal and not a review. Accordingly, this complaint must fail.’

[15] ‘Ster-Kinekor further submits that Mogano’s evidence that other employees also tasted the popcorn was never put to Naicker, and that the Commissioner was obliged to disregard it. It is indeed so that the said evidence was raised for the first time in Mogano’s testimony. However, the Commissioner did not place any reliance on this evidence in reaching the conclusion. Instead, the Commissioner’s finding rests on Naicker having allowed Mogano to taste the popcorn, a version which was put to him during cross-examination and to which he responded that “[s]he did that a year ago but I never said she must eat the popcorn”. Therefore, the submission regarding other employees’ tasting of the popcorn takes the matter no further as it was not determinative of the outcome of the award.’

[16] ‘Turning to the existence of the rule, Ster-Kinekor’s case is that the popcorn preparation procedure precluded tasting by implication, as it prescribes a fixed recipe and allocates quality control to management. Naicker described a process in which “[t]here is no testing involved”. Under cross-examination, Naicker was asked where the procedure forbids an employee from tasting the popcorn, and he did not identify any provision, maintaining instead that “[n]owhere in this document does it say that you are actually allowed to eat in any case”. Additionally, Naicker accepted that, following a customer’s complaint in 2022 that the popcorn was too salty, he had tasted it and given some to Mogano to taste. As regards Mogano’s knowledge of the procedure, Naicker conceded that “I do not have proof on me”, adding that “she knows the steps”, as she would otherwise be unable to make popcorn. Knowing how to make popcorn, however, does not denote knowledge that tasting it for salt is prohibited. It follows that the Commissioner’s finding that her awareness of such a rule was not proven is reasonable.’

[17] ‘A closer reading of Ster-Kinekor’s standard operating procedure reveals that the complex manager and the multi-skilled supervisors are required to ensure that “daily checks are conducted” on the making of popcorn and on the “[y]ield tests and results thereof”.[5] The procedure thus allocates responsibility for those checks to management, but contains no provision prohibiting an employee from tasting the popcorn for salt, which bears out the Commissioner’s finding that no such prohibition was proven. Equally, the Commissioner’s finding that Mogano was allowed to taste the popcorn for salt rests on her evidence that she was so instructed following the customer’s complaint in 2022. That evidence finds support in Naicker’s acceptance that he gave her some of the popcorn to taste.’

[18] ‘It is apposite to restate that an employer who relies on a workplace rule must prove both the existence of that rule and the employee’s awareness of it.[6] In the current matter, Ster-Kinekor sought to do so by reading into its standard operating procedure a prohibition not expressly contained. Illustratively, the Court raised with Ms Black that the procedure makes no mention either of an employee cleaning up popcorn which falls to the ground, and that the absence of any provision prohibiting such conduct could hardly render the discarding of the fallen kernels a contravention of a rule. Thus, where an employer relies on its procedure as the source of a rule, conduct in the course of that procedure which is not expressly prohibited cannot, by inference, be elevated into a disciplinary offence, let alone be imputed to the employee as a known transgression.’

[19] ‘Equally, the Court accepts that, not every rule need be reduced to writing, as some rules or standards are so well established and known that it is not necessary to communicate them.[7] Tasting popcorn for salt does not fall within that categorymore so in light of the Commissioner’s finding that Mogano was permitted to taste it. Therefore, Ster-Kinekor’s contention that the absence of a rule was transformed into an authorisation is unsustainable. Consequently, this first ground of review fails.’

[20] ‘Although this ground was not persisted with in the heads of argument or at the hearing, it remains before the Court for determination. The test is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend that the Commissioner had not brought an impartial mind to bear on the dispute.[8]’

[21] ‘The record does not support the allegation of bias. Mr Swart, who represented Ster-Kinekor at the arbitration, sought in re-examination to deal with the absence of Mogano’s signature on the procedure, which the Commissioner initially considered to raise new evidence. Upon Mr Swart’s explanation, the Commissioner accepted that “[a]fter you clarified it I also agreed with you so that I am not abusing my powers”, and permitted the re-examination to proceed, reserving only the weight to be attached to the evidence. There is, moreover, nothing in the record evidencing that the Commissioner declined to take notes. In any event, a failure to take notes would not necessarily indicate that the evidence was disregarded. On the record, therefore, no reasonable apprehension of bias arises, and this ground also fails.’

[22] ‘Cumulatively, the outcome of the award is grounded on the Commissioner’s findings that Mogano’s version was more probable, that Naicker had permitted her to taste the popcorn for salt, and that Ster-Kinekor had not proven a rule prohibiting the tasting or her knowledge of such a rule. These findings are supported by the record, and the outcome is one that a reasonable commissioner could reach.’

Relief: Condonation for the late filing of the review application was granted, and the review application was dismissed, leaving the award of retrospective reinstatement undisturbed. There was no order as to costs.

Judgment on SAFLII