- Ster-Kinekor dismissed Yvonne Mogano for allegedly eating popcorn in the cinema kitchen.
- Mogano said she was tasting the popcorn to check its salt levels, following her manager’s instruction.
- The Labour Court found Ster-Kinekor had not proved that tasting popcorn was against workplace procedures.
An employee dismissed by Ster-Kinekor for eating popcorn at work has had her reinstatement upheld after the Labour Court found the cinema operator failed to prove she broke a workplace rule by tasting the popcorn she was preparing.
Acting Judge MJ Motshekga dismissed Ster-Kinekor Theatres’ application to review an arbitration award that found Yvonne Mogano’s dismissal substantively unfair and ordered her reinstatement with retrospective effect.
Employee dismissed after popcorn incident
Mogano worked as a multi-skilled employee at Ster-Kinekor’s cinema at The Zone in Rosebank since May 2014. Her duties included preparing popcorn.
She was dismissed on 14 July 2023 after a disciplinary hearing about an incident on 30 June 2023. The charges included misappropriation of company assets, dishonesty, and failure to comply with company policy and standard practice.
Ster-Kinekor alleged Mogano was caught eating popcorn in the kitchen while preparing it. The complex manager, Tyran Naicker, said he found her eating popcorn and questioned her about it. He claimed she kept eating, and when he returned about 20 minutes later, she was still doing so.
The company said its standard operating procedure did not allow employees who prepared popcorn to taste it, as quality control was management’s responsibility. Mogano disputed that she was eating the popcorn. She said she put a few kernels in her mouth to check the salt level.
She told the arbitration that, in 2022, a customer had complained the popcorn was too salty. She and Naicker tasted it, and he instructed her to check the salt in future but not to eat it. Mogano referred an unfair dismissal dispute to the CCMA on 27 July 2023, challenging the substantive fairness of her dismissal.
The commissioner found Ster-Kinekor had not proved she broke a workplace rule or acted dishonestly, and ordered her reinstatement with retrospective effect. Ster-Kinekor approached the Labour Court to have the arbitration award reviewed and set aside, arguing the commissioner misunderstood the evidence and wrongly concluded Mogano tasted rather than ate the popcorn.
Company failed to prove popcorn-tasting prohibition
Ster-Kinekor argued that the commissioner erred by treating the lack of an express rule against tasting popcorn as permission for employees to do so. The company relied on its standard operating procedure, which set out how popcorn was to be prepared and said quality control was for management.
But Judge Motshekga found the procedure did not actually prohibit employees from tasting popcorn to check for salt. During arbitration, Naicker explained the process by stating, “There is no testing involved.” When asked where tasting was prohibited, he could not point to a specific rule. Instead, he said the procedure did not expressly allow employees to eat popcorn.
Naicker also admitted he had tasted popcorn after a customer complaint in 2022 and had given Mogano some to taste. The judge found the commissioner reasonably accepted that Mogano had been allowed to taste popcorn for salt and that her evidence was supported by Naicker’s own acknowledgement.
Judge Motshekga emphasised that an employer relying on a workplace rule must prove both its existence and the employee’s knowledge of it.
Ster-Kinekor tried to argue the procedure implicitly forbade tasting, but the judge found this was not enough. Conduct not clearly prohibited cannot be turned into a disciplinary offence and treated as a workplace transgression.
The judge also looked at the operating procedure, which required managers and supervisors to check popcorn preparation daily, including yield tests and their results. Although these rules gave quality-control duties to management, they did not explicitly prevent employees from tasting popcorn.
The judge acknowledged that not every workplace rule needs to be written, as some standards are so well known that employees are expected to know them. But tasting popcorn for salt was not one of those, especially given the commissioner’s finding that Mogano had been allowed to do it.
Ster-Kinekor’s disagreement with the commissioner’s preference for Mogano’s version was not enough to justify a review. The judge noted that challenging a decision-maker’s preference between competing versions is an issue for appeal, not review.
Labour Court rejects bias allegation
Ster-Kinekor also claimed the commissioner ignored evidence in re-examination and declined to take further notes, arguing that his conduct showed bias. Judge Motshekga considered whether a reasonable person would think the commissioner had not handled the dispute impartially.
The judge found the arbitration record did not support the bias claim. Ster-Kinekor’s representative had tried in re-examination to address the lack of Mogano’s signature on the operating procedure. The commissioner questioned whether this was new evidence but let the questioning proceed after an explanation.
The judge found no proof the commissioner had refused to take notes. Even if he had, that would not necessarily mean he ignored the evidence. The court concluded there was no basis to find the commissioner was biased.
Reinstatement upheld
Judge Motshekga found the arbitration award was supported by the evidence. The commissioner reasonably concluded Mogano’s version was more likely, that Naicker had allowed her to taste the popcorn for salt, and that Ster-Kinekor had not proved she knew this was prohibited.
The Labour Court granted condonation for the late review application but dismissed Ster-Kinekor’s case. No order was made as to costs.
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