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.


Use the lock down to your advantage

We find ourselves in unprecedented times, after President Ramaphosa placed South Africa in a 21-day lock down to combat the spread of the COVID-19 virus.

While a pandemic is naturally unpredictable, many labour issues sprout from oversights that are predictable, and thankfully, can be rectified. These pertain to an absence of contracts and policies that set legal boundaries and establishes responsibility in the case of transgression.

According to the Basic Conditions of Employment Act (BCEA) it is required by law that every employer provides a contract of employment to the employee on no later than the first day of work. The contract must stipulate the parties entering into the employment agreement, the terms of service, and the conditions of employment – including remuneration, deductions, hours of work, overtime, leave and termination of employment.

Another pitfall, often overlooked especially by smaller companies, is the need for company policy documents which often lead to successful challenges by disciplined or dismissed employees at the CCMA for unfair labour practice. Unfair labour practice is defined by Section 186(2) of the Labour Relations Act (LRA) as “any unfair act or omission that arises between an employer and an employee…” Without a company policy in place – along with a documented record that the employee had been informed and agreed to the stipulations in a policy – it can be an extremely difficult task to act against employees. The employee can, as a principle of unfair labour practice, claim that he was never informed of the policy s/he transgressed and has the right to conclude that it does not exist.

Drafting company policy documents are not without their own legal difficulties and is best to be done in consultation with an experienced labour law expert. Policies that may be required by any company, irrespective of size, include:

  • Disciplinary & Grievances Policy
  • Company Communications Policy
  • Company Vehicles Policy
  • Computer Usage Policy
  • Corruption, Gifts and Kickbacks Policy
  • Employment Equity Policy
  • Performance Management Policy and Procedure
  • Sexual Harassment Policy
  • Smoking Policy
  • Telephone Policy
  • Travel Policy
  • Health & Safety Policy
  • Emergency and Disaster Management Policy

Incorporating such matters into a contract means that any transgression is then not only a breach of company policy but also a breach of contract – putting the employer on much more solid ground should any dispute arise.

Another minefield in the dispute landscape is the lack of documented training records. Following on the same principle as above, an employee that is disciplined or dismissed for poor work performance, may challenge such a sanction on the basis that they were not properly trained in the task/system which lead to the disciplinary action, thus rendering any sanction of poor performance to be unfair. A detailed training record on file of any training sessions, coaching (informal or formal) offers great insurance from a disgruntled, non-performing employee.

Time spent on closing loopholes to prevent disciplinary or behavioural headaches is always well-spent, and best done sooner rather than later. In the spirit of the lock down, use any available time in the next three weeks to re-examine employee records and close any gaps you may find.