0

Theft in the Workplace

Theft is accepted as one of the more egregious transgressions in the workplace. It speaks to the root of the employment relationship which binds the employer and employee to act in good faith towards each other in the common interest of both parties. When one party breaks that trust, the working trust relationship between the employer and employee could be unsalvageable thus the well-known sanction of a summary dismissal for theft.

Unfortunately, employers very often act in the heat of the moment, reacting to the distress of discovering a theft, immediately dismissing an employee without following a fair procedure. Summary dismissal without having a disciplinary hearing process could, and often does, lead to the employee referring a dispute to the CCMA for unfair dismissal based on the procedural fairness being challenged. This will almost guarantees that the employer will lose the case in spite of the merits of the case for theft against the employee. When the CCMA has to look at unfair dismissal dispute they need to decide on a substantive and procedural fairness of the case. And in such an instance, the employer would have failed on a procedural fairness.

It is crucial that employers keep in mind that, according to the Labour Relations Act (Schedule 8) an employee may only be dismissed on the grounds of the conduct or capacity of the employee, or the operational requirements of the employer. Also, dismissal is unfair if it is not for a fair reason and in accordance with a fair procedure. This means that even though there may be concrete evidence that an employee did commit a theft, an employer is still required to follow a fair procedure prior to dismissing an employee.

Therefore, a disciplinary code is vital to ensure that the rules of the workplace are clear to both employees and employers. There should be a rule in place, the employee should have been aware of the rule and the employee should have broken the rule. Such a policy must make it possible for an employer to, in the case of serious misconduct, to proceed directly to a disciplinary hearing. The disciplinary hearing must follow a set standard and must allow the accused employee to state his or her case. (Refer: Procedurally fair disciplinary hearings)

To prove the substantive part of the accusation, an employer must be able to prove that:

  • the employee took goods or property that did not belong to him/her,
  • the employee knew that permission was required to take the goods or property, and did not have the necessary permission to do so,
  • that by taking the goods or property, the employee deprived the employer the use or benefit of the good or property, and
  • the employee had no intention of returning the goods or property to the employer.

It is also important to keep in mind that, when an employee is dismissed, that the charge on which the guilty verdict leads to the sanction of dismissal is correctly formulated. In other words, if an employee is accused of misconduct for theft, but dismissed because it is determined that the trust relationship between the employer and employee is irreparably broken, may lead to a finding of unfair dismissal at the CCMA.

In a reading of case law, it becomes clear that there are no clear rules for a sanction of dismissal in the case of theft, and employers are advised to examine all the circumstances related to the incident as well as the circumstances of the of the employee to determine whether the trust relationship is irreparably broken. Employers should also consider whether progressive discipline, such as a final warning, may not be more appropriate to the circumstances.

Irrespective of the investigations done, processes followed, and considerations allowed, employers must treat every dismissal as a potential, if not probable, CCMA case and ensure that all policies and procedure are followed and documented.

0

Resigning with immediate effect may not be an easy escape

An all too familiar scenario to employers is the employee who resigns with immediate effect as soon as they are informed that they will be subjected to a disciplinary process and/or hearing.

This begs the question: Can the employer continue with the disciplinary process?

According to the BCEA (section 37), an employee may give notice of his resignation, or an employer may give notice of termination of employment, within the following time periods:

  • One week’s notice, if the employee has been employed for six months or less.
  • Two weeks’ notice, if the employee has been employed for more than six months but less than one year.
  • Four weeks’ notice, if an employee has been employed for one year or more.
  • Four weeks’ notice, if an employee is either a farmworker or a domestic worker who has been employed for more than six months.

These are the minimum time periods allowed by law. The notice periods should also be stipulated in the contract of employment with a stipulation that, should the employee resign, the employer will enforce the notice period, therefor requiring the employee to give the proper notice and to work for the full period.

Whereas the law sees a resignation as a unilateral act, the resignation only comes into effect on the expiry of the contractually agreed notice period. An employee resigning without serving the notice period is in breach of contract.

The employer has two option in such a scenario:

  • Hold the employee to the contractually agreed notice period and require the employee to complete work, or
  • Accept the resignation, cancel the contract (on the basis that the employee breached the contract) and sue the employee for damages through civil court.

Whereas seeking damages through a court may be a unjustifiably large expense to an employer in such a scenario, it may also be unconscionable for an employer to let an employee leave with a clean disciplinary record if the reason for the immediate resignation was to avoid a disciplinary inquiry.

An employee may argue that his/her immediate resignation terminates the employment relationship thus ending the jurisdiction of the employer to continue disciplinary action. However, according to the legally agreed notice periods and the contractually agreed stipulation that an employer will enforce the notice period, the employer may refuse to accept the short notice period. In enforcing the full notice period, the employer can then continue with the disciplinary process, provided that the inquiry and disciplinary hearing takes place before the expiry of the notice period.

Should the employee be found guilty of misconduct and the sanction as determined by an independent chairperson is dismissal, the employee’s disciplinary record can reflect the termination of employment to be due to dismissal rather than resignation. In the case where an employee is found to not be guilty during a disciplinary hearing but had already tendered their resignation and wishes to withdraw their resignation based on this finding, the employer is under no obligation to accept the retraction of the resignation.

This article is being provided for informational purposes. Contact Joblaw for any enquiries and legal advice.

0

Procedurally fair disciplinary hearings

One of the most common reasons employers end up at the CCMA, and on the losing side of the table, is the procedural fairness of a disciplinary process that ended in dismissal. Even though there may be ample substantive reason to support dismissal, an employer must follow a correct and fair process prior to dismissing an employee.

Just as a procedurally fair disciplinary process can be regarded as complying with the rights of the employee, employers have rights in the workplace as well, including:

  • The right to establish a fixed standard in terms of quality and quantity
  • The right to implement rules in the workplace
  • The right to apply discipline when these rules are broken

The right to apply these rules must be backed up by a clear disciplinary code to which the employees are held accountable.  If and when the employees do not adhere to the rules as established in the code, the employer should then be able to safely apply progressive disciplinary steps as needed according to the agreed guidelines in the code.

Should progressive disciplinary steps not remedy the transgressions, or if the transgressions are serious enough on first offense, more serious sanctions (in the form of dismissal) may be needed. However, prior to any sanction or dismissal because of disciplinary action, an employer must hold a disciplinary hearing. It is essential that an employer can prove that a hearing was held prior to any dismissal.

A disciplinary hearing is intended to ensure that a fair procedure is followed and that there is a substantive reason with sufficient evidence to warrant a serious disciplinary sanction, up to and including dismissal.  It is important to remember that the Labour Relations Act recognises only three circumstances under which dismissal can be considered a fair sanction:

  • Misconduct
  • Incapacity (including poor work performance)
  • Operational requirements (retrenchments)

However, any dismissal under these circumstances will not be deemed automatically fair by the CCMA. The chairperson of the hearing must follow three distinct processes during the hearing, each process to be finalised before the next process is started:

  1. The chairperson must first establish, by examining the entire process that a fair procedure had been followed and that the accused had not been prejudiced or compromised through unfair actions by the employer.
  2. The chairperson must decide, based on the evidence presented, whether to find the employee guilty or not guilty.
  3. The chairperson must, upon finding an employee to be guilty, consider all relevant factors including:
  • the employee’s length of service
  • previous disciplinary record
  • personal circumstances
  • the circumstances surrounding the transgression
  • whether the sanction is consistent with previous cases of a similar transgression and subsequent disciplinary action
  • seriousness of the offense
  • extenuating circumstances such as self-defence, provocation, coercion, and intent

The Chairperson must allow the employee to present arguments in mitigation of the sanction and he must consider whether a lesser sanction would suffice.

Standard Disciplinary Procedures

  1. The employer must issue a written notice of the disciplinary hearing to the employee in a form and language s/he can reasonably understand with the date of the notice, the date, time and place of the hearing, as well as the charge/s against the employee.
  2. The notice must include a clear and detailed description of the charges against the employee to be considered at the hearing, including the date, time, and the details and description of the transgression/s.
  3. The notice must be issued to the employee in time to allow reasonable time to prepare for the hearing. This time must, at minimum, follow the company disciplinary code. More time should be allowed in the case of more complex charges. Moreover, an employee is entitled to sufficient information and documents as requested to prepare for the hearing.
  4. The employee has a right to present a defence against the charges including presenting evidence and witnesses. The employer has a right to examine and question the evidence presented by the employee and witnesses, and the employee has the right to examine and question the evidence and witnesses presented by the employer.
  5. The employee is entitled to be represented by a fellow employee or a trade union representative. The employee must inform the employer of such representation prior to the hearing. Employers must take note that the LRA definition of a trade union representative is a shop steward and not an external trade union representative. Should the employee request outside representation the employee must submit a formal application detailing the reasons why outside representation is being requested. If required, the employee is also entitled to the use of an interpreter.
  6. The employee has a right to fair judgement. As such a disciplinary hearing should be heard by an objective and impartial chairperson.

After the conclusion of the disciplinary hearing, and upon receiving the decision made by the chairperson, the employer must communicate in writing to the employee the decision and, should the decision be that the employee is found guilty of the charges, the subsequent sanction imposed and the reasons for the sanction. The employee must also be reminded that s/he has a right to refer the matter to the CCMA (or relevant council) within 30 days.

This article is being provided for informational purposes. Contact Joblaw with any disciplinary process enquiries and legal advice.

0

Importance of having disciplinary warnings on file

It is an unfortunate reality that even the most diligent and fair employer or business-owner will at some point be required to apply disciplinary action or issue warnings in situations in the best interest of the company and the employee.

Disciplinary procedures and warnings, when appropriately used and managed, is not intended to punish a wrong but to correct wrong actions.

Warnings can range from a verbal warning to a final written warning depending on the circumstances under which it occurred or the severity of the misconduct or offence in need of correction. The severity of a warning can progressively be increased if the employee keeps repeating the offences or continues to commit offences against the established disciplinary code despite previous attempts to rectify the situation. Warnings issued should always follow the company’s established Disciplinary Code and it must be on record that the employee being sanctioned has seen, read and understood the disciplinary code. Employers are encouraged to discuss the company’s Disciplinary Code with Employees on a yearly basis.

Item 7 (b) of Schedule 8 to the Labour Relations Act provides:

If a rule or standard was contravened, whether or not:

(i)           The rule was a valid or reasonable rule or standard

(ii)           The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

(iii)         The rule or standard has been consistently applied by the employer

The drafting and dissemination of the company disciplinary code, as well as record that all employees have been informed of the disciplinary code is the first step in a vital record keeping process to fairly and lawfully apply disciplinary actions which may lead to warnings. The lack of such a paper trial may invalidate any defence against an unfair business practise/dismissal claim at the CCMA from the start.

A written warning must, at minimum, contain the following,

  • the identity of the employer and the employee
  • details of the offence: nature of, date of and time of offence
  • the terms of the warning and the period of validity
  • a clear statement of the corrective actions required by the sanctioned employee
  • a clear statement of the consequences for the sanctioned employee should he/she fail to fulfil the requirements as stated above or repeated offenses within the warning period
  • verifiable proof (in the form of the employee’s signature or witnesses) that the warning was delivered and received by the employee.

A warning should only be issued after a fair disciplinary process, and this process must be started immediately after the employer finds out about the transgression, conducted and completed as soon as possible to enable the employer to issue a warning (if warranted) with the most specific, concise information possible. This will help to avoid any future problems that may lead to a challenge at work or at the CCMA.

It is vital to any business and employer to keep accurate, detailed record of every disciplinary action and warning, including verbal warnings, documenting the charges and actions taken. To not do so imposes a huge risk to the employer should any disciplinary action be challenged at the CCMA, which could lead to monetary awards or reinstatement of a sanctioned employee.

In case law, refer to Gcwensha v CCMA & others, where the employee had been dismissed for gross negligence. Diligent recordkeeping by the employer evidenced that the employee had several previous warnings for incompetence, negligence and inefficiency. Gcwensha was on a current warning when he was dismissed. The court found that the employee had a ” deplorable record” of transgressions and misconduct, which the employer was entitled to take into consideration when deciding on the appropriate sanction to be taken for the current transgression. The employer was able to defend this action and avoid reinstatement of the employee because of the verifiable history of warnings he had on file.

The opposite was true in NUMSA v John Thompson Africa (Pty) Ltd [1997] 7 BLLR 932 (CCMA). It was the lack of proper record keeping that lead to the employer being ordered to reinstate the employee who was dismissed on charges of ‘wilful damage to and deliberate misuse of company property, using abusive language, and being under the influence of an intoxicating substance.’ The employee appealed the dismissal according to the employer’s established procedures, but at the appeal hearing there were no records of the proceedings or evidence tabled at the disciplinary hearings to make available to the chairperson to consider. It could not be proven that the employment relationship had irretrievably broken down due to the employee’s behaviour and it was ordered that the employee be reinstated.

Schedule 8 (Code of Good Practice – Dismissal) requires that employers must keep records of all disciplinary action taken against employees, the reason for it, and the outcome of that disciplinary action. An employer that does not do this, goes to the CCMA with little ammunition – and his case becomes quite indefensible.