What if an employee is dismissed for being in possession of items of little value — when will such dismissal be substantively fair?

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Good day everyone, and welcome to another discussion in our What if series, where we bring you insights in the format of a what if question on the ever-evolving landscape of employment law.

I am Ross Simon from Maserumule Corporate Employment Law, and in today’s discussion we will be unpacking a particularly enlightening case to kick off 2026 — one that demonstrates how even seemingly straightforward misconduct allegations can unravel when investigations are poorly executed.

What if an employee is dismissed for toilet paper possession — when will such dismissal be substantively fair?

This question has more layers than you might think, and the answer comes from a recent Labour Court judgment.

The case guiding today’s discussion is Mpact Operations (Pty) Ltd v Metal and Engineering Bargaining Council and Others.

The facts appear straightforward.
A long-serving employee, employed since 2009, was dismissed in November 2022 after security found a roll of toilet paper in his bag during a routine search.

Acting on a tip-off, the company alleged that the roll matched their unique brand and charged the employee with theft and dishonesty for attempting to remove company property without authorisation.

The employee denied the allegation, maintaining that he had brought the toilet paper from home.

Despite the allegation of theft, security allowed him to leave the premises with the disputed roll still in his possession.

Here’s where the case becomes a cautionary tale.
Despite finding the item:
- Security never confiscated it
- Never preserved it as evidence and
- Never photographed it alongside the company’s stock for comparison
Instead, the employee was allowed to leave with the disputed roll — an act captured on CCTV footage.

At the disciplinary hearing, the company’s case relied heavily on the assertion that its toilet paper was uniquely sourced and unavailable in retail stores.

A witness presented photographs of the roll the employee allegedly brought from home.

Crucially, however, no photograph was taken of the company’s roll on the day of the incident.

When asked why this critical step was skipped, the explanation was that the security office was “too busy”.

The Labour Court later described this explanation as “nonsensical.” The employee was found guilty and dismissed. The employee referred an unfair dismissal dispute to the Bargaining Council. The commissioner found the dismissal substantively unfair and ordered reinstatement with back pay.

The commissioner’s reasoning was clear:
- The company failed to prove, on a balance of probabilities, that the toilet paper belonged to the company or that the employee intended to remove it dishonestly.

the Commissioner identified several fatal flaws:
: - The physical evidence was never secured or preserved
- Comparative photographs introduced later had no evidentiary value
- CCTV footage showed the employee leaving openly, undermining any inference of dishonest intent
- Security personnel and managers allowed the employee to leave with the item, contradicting the allegation of attempted theft

Importantly, the commissioner noted that possession alone is not theft — the employer must prove both ownership and unlawful intent to remove or appropriate the property.

The company sought to review the award, arguing that the commissioner:
- Failed to consider the rule requiring declaration of personal items
- Should have accepted that the toilet paper was unique
- Erred in preferring the employee’s version despite photographic evidence

The Labour Court rejected these arguments. It held that the commissioner’s decision was one a reasonable decision-maker could reach.

The Court emphasised that the investigation was materially defective from the outset. The failure to preserve evidence, the lack of contemporaneous comparative photographs, and allowing the employee to leave with the item fundamentally compromised the company’s case.

The Court reinforced a critical principle:

Even where an item is found in an employee’s possession, the employer bears the onus of proving:
- That the item was company property, and
- That the employee intended to remove it unlawfully
Without meeting this burden, a charge of theft or dishonesty must fail.

Practical Lessons for Employers
- First, possession does not equal theft
- Second, investigations determine outcomes
- Third, video evidence can weaken a case if not properly contextualised
- Fourth, overcharging misconduct is high-risk
- Finally, once guilt is not proved, the inquiry must end, Sanction cannot cure a failure to establish misconduct.

The bottom line, colleagues, is this: Even strong suspicions will fail if investigations are poorly executed. Evidence must be secured. Procedures must be defensible. And decision-making must withstand scrutiny long after the incident.

That brings us to the end of this week’s discussion. Thank you for joining us. I hope you have found our discussion information If you have any questions or comments, we’d love to hear from you. You can find us on social media or email me on ross@masconsulting.co.za

Until next time — bye-bye.