- Tshifhiwa Nengovhela was charged with overcharging a customer while using a till she had not been trained to operate.
- She said her line manager had authorised her to operate the till when he was unavailable.
- The Labour Court upheld the finding that her dismissal was substantively unfair, ordering her reinstatement with additional backpay.
Studio 88’s effort to challenge the reinstatement of an employee dismissed for overcharging a customer has failed, as the Labour Court found her actions did not rise to gross negligence.
In a judgment delivered on 8 October 2026, Acting Judge VJ Heideman dismissed Blue Falcon 188 Trading (Pty) Ltd, trading as Studio 88’s, application for leave to appeal an earlier ruling that upheld the employee’s reinstatement.
Employee dismissed for overcharging customer
The matter involved Tshifhiwa Nengovhela, who was dismissed after she overcharged a customer for an item. The judgment does not specify the item, the amount charged, or the difference between the charged and correct price.
Nengovhela said her line manager asked her to operate the till in his absence, even though she had not received any training on it. Studio 88 argued that salespersons were not allowed to operate the till, but the court found that the company had not proven an absolute ban.
Commissioner Thapelo Mathekga found that Nengovhela’s actions were negligent but did not amount to gross negligence, as Studio 88 had not produced enough evidence to support the more serious charge.
Studio 88’s rules state that gross negligence is a dismissible offence, while regular negligence only warrants a written warning. The commissioner therefore ruled her dismissal substantively unfair and ordered reinstatement with four months’ backpay.
Court rejects arguments about authorisation
Studio 88 challenged the arbitration award, arguing that the Labour Court wrongly accepted that Nengovhela genuinely believed she was authorised to operate the till. The company also disagreed with the court’s approach to the issue of authorisation and its finding that Nengovhela had been consistent in her story.
Judge Heideman said Studio 88’s arguments misunderstood the previous ruling and mixed up the issues. The core question was whether a reasonable commissioner could have reached the conclusions in the arbitration award.
The court found no real inconsistency in Nengovhela’s account that her manager told her to use the till when he was unavailable. Her testimony that he was sometimes in the storeroom, away from the shop floor, or on lunch breaks did not undermine her version.
The judge also rejected the argument that her statement that she did not know if she was authorised to use the till contradicted her evidence. The court explained that her answer needed to be seen in the context of her testifying through an interpreter and in English. It was not an admission that she knew she was not authorised to operate the till.
Lack of training did not establish gross negligence
Studio 88 argued that Nengovhela’s lack of training should not have stopped a finding of gross negligence. The company relied on two judgments about the difference between ordinary and gross negligence.
The court said gross negligence requires a serious departure from what a reasonable person would do. A simple mistake or failing to exercise ordinary care is not enough. Judge Heideman found that Nengovhela’s error while operating an unfamiliar till, which her manager authorised her to use, did not amount to extreme conduct.
The judge concluded that the commissioner’s finding of negligence, rather than gross negligence, was reasonable. The case law cited by Studio 88 did not persuade the court that another judge would reach a different outcome.
Alleged irregularity during cross-examination
Studio 88 also claimed the commissioner committed a gross irregularity by stopping it from questioning Nengovhela about supposed inconsistencies between her arbitration evidence and her statements in the disciplinary hearing.
Acting Judge Heideman found that Studio 88 had not properly supported this claim in its paperwork. The referenced passages did not point to parts of the arbitration record that actually showed the irregularity.
On reviewing the record, the judge found that the commissioner had not blocked questions about the alleged inconsistent statements. Instead, the commissioner helped clarify a question put to Nengovhela during cross-examination. The court ruled that Studio 88 had failed to make a solid case for the alleged irregularity.
Court refuses leave to appeal
Studio 88 raised eight grounds of appeal, including a challenge to the calculation of backpay. The company did not pursue the backpay argument during the oral hearing and accepted that the court’s calculation was correct.
The Labour Court applied Section 17(1) of the Superior Courts Act, which requires an applicant to show that another court would reach a different result. It is not enough to show that an appeal might succeed.
The court dismissed the application for leave to appeal. Its earlier order had increased Nengovhela’s backpay by 41 months, covering the time between the date the commissioner told her to return to work and the date set out in the Labour Court’s order. There was no order as to costs.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
