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.


Constructive Dismissal

A successful claim for Constructive Dismissal against an employer can be an extremely costly penalty, and not just in financial terms. Following on from the need for a solid grievance policy, as well as dealing with harassment and victimisation quickly and fairly, it is important to take note of the very real threat of facing a claim for Constructive Dismissal.

Constructive dismissal, according to Sections 186 (1)(e) and 193 of the Labour Relations Act (LRA), is when “an employee terminates a contract of employment with or without notice because the employer made continued employment intolerable for the employee”. In other words, the employee felt that, due to the environment created by the employer s/he had no other option but to resign.

This does not mean that any situation with which an employee is unhappy would be eligible to be deemed a basis for Constructive Dismissal. Common complaints about aspects of their work, their employer, or their duties and tasks does not automatically mean that it has become intolerable for the employee to continue employment. For a Constructive Dismissal to occur, the intolerable circumstances must have been created by the employer due to which the employee feels the only recourse left to them is to resign. Complaints and grievances that are considered valid to be deemed intolerable include (but are not limited to) assault, sexual harassment, victimisation, or harassment. Many of these complaints potentially have separate claims but can also form the basis for a claim of Constructive Dismissal.

For a claim of a Constructive Dismissal to be successful, the employee will have to prove to the Commissioner that there were no ulterior motives behind his/her resignation, in other words, that but for the intolerable circumstances being alleged, the employee would have remained in the employ of the employer indefinitely.

The Commissioner will look for the following five elements to prove a Constructive Dismissal:

  • The circumstances at work were so intolerable that the employee could not continue.
  • No reasonable alternative was available to the employee at the time and resignation was the only way the employee could escape the circumstances.
  • The intolerable circumstances were the reason the employee resigned.
  • The employer caused the intolerable working situation.
  • The employer was in control of the intolerable working situation.

Ideally, any serious grievance an employee lodges should be resolved in a fair and equitable manner within the company. It is difficult for employees to prove Constructive Dismissal at the CCMA if they had not exhausted all internal procedures, where it is a reasonable option. By example, it would not be considered reasonable for an employee to lodge a serious grievance, such as sexual harassment, where the employee is employed in a small business and the alleged harasser is the employer.

A company that does not have a grievance procedure or internal complaints policy, could find themselves in jeopardy as an affected employee could cite this as a reason that they had no other options available to them to resolve the conflict, and resigned to escape the situation. This again emphasises the necessity for an established and robust company grievance policy, and the need for a Human Resource support structure or agency, and employers are strongly advised to implement such measures.


Legal implications of “bullying” in the workplace

Bullying is a term usually associated with schoolchildren i.e. taunting, pushing, shoving, and picking on the new or different kid in the class. However, bullying is also a reality amongst adults in the workplace. These actions are more commonly referred to as harassment and victimisation.

Under current labour laws, including the Labour Relations Act (LRA), the Basic Conditions of Employment Act (BCEA), or the Employment Equity Act, bullying is not explicitly defined. However, section 6(1) of the Employment Equity Act does contain a prohibition against unfair discrimination:

“No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.” Section 6(2) adds: “Harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1).”

Ordinarily, bullying will be deemed harassment, and therefore will fall under the ambit of unfair discrimination, even if the reason for the bullying is not one of the grounds listed under section 6(1) of the Employment Equity Act. If the reason for the harassment can be demonstrated, a case for harassment/bullying can be made.

Bullying often rears up when an employer wishes to force an employee to resign without reason or provocation, thus not having a justifiable reason or sufficient evidence of misconduct to follow the correct disciplinary procedure to remove the employee from the workplace. The Employer then resort to aggressive and harassing behaviour to make continued employment for the victim unbearable.

Therein lays the real risk to Employers. According to the CCMA, employers have a duty of care to protect their employees from bullying, harassment, and victimisation. Under the umbrella term “harassment” this is classed as unfair discrimination due to a violation of human rights.

When employees are unfairly discriminated against in this way, they should have the normal company grievance procedure available to them to resolve the matter. Employers are obligated to investigate the case and where necessary, take disciplinary action against the harasser. If the matter cannot be resolved within the company’s internal structures, the complaint can be referred to the CCMA for conciliation. If a resolution is still not reached, the matter will then be referred to the Labour Court for arbitration. In the case where harassment led to, or influenced, a dismissal the matter may be an automatically unfair dismissal which falls under the exclusive jurisdiction of the Labour Court.

Employers should also take note of the Protection from Harassment Act (Act no. 17 of 2011) which could have even further detrimental implications to a business should they fail to take adequate action on a complaint of harassment (victimisation or bullying). The provisions of this act make it possible for an employee to obtain a protection order against an abusive supervisor or colleague. Such an order, and some of the protective measures deemed necessary by the court, may cause the day to day running of the business to become impractical.

Employers are advised to draft and implement harassment policies as well as training and awareness campaigns in the workplace and to deal with complaints as quickly as possible.


Managing grievance in the workplace

One of the many important policies that a responsible employer must have in place is also quite possibly the simplest: a grievance procedure. Despite biases to the contrary encouraging and empowering employees to raise concerns and alert the employer to conflicts promotes a healthy working environment.

A grievance is any complaint an employee may raise due to a feeling of discontent, unfairness, or injustice in respect to his or her work conditions or against a colleague, manager, or supervisor. The cause of the feeling may be deliberate (as in the case of harassment, victimisation, or bullying) or unintentional but may be experienced as equally detrimental by the employee. A grievance procedure should be aimed at resolving workplace problems and complaints before they escalate to litigation in a fair, transparent, and consistent manner without directly or indirectly prejudicing the employee lodging the complaint.

Depending on the needs and staff compliment of an employer, grievance procedures do not need to be formal or elaborate. In smaller companies a short section in the employment contract detailing the steps to follow to report a complaint may be sufficient. Larger organisations with more complex management and oversight structures should compile a more formal policy document, outlining the hierarchal order in which complaints should be escalated.

Ideally, minor complaints should be resolved through informal meetings with the employees’ manager or supervisor unless the employee requests a formal meeting. In the case of a more serious complaint, a formal meeting should be called, and records must be kept of all proceedings.

Depending on organisational policy, formal grievance procedures should follow the same basic principles:

  • Employees must be entitled to lodge grievances to management.
  • Employees should be allowed representation, either by a colleague or shop.
  • All levels of management must consider the complaints carefully and make genuine attempts at resolving the grievance.
  • The grievance will not be considered resolved until the employee indicates that it is.
  • Time limits should be established for all steps in the process.
  • An employee has the right, should a grievance remain unresolved, to declare a dispute.
  • Grievances should as far as practically possible be managed by the line managers of the employee, however, other employees such as Human Resource Management may be called upon for intervention and advice where necessary.

Grievance procedures should not be used in the place of, or as a reaction to, a disciplinary procedure. Should an employee feel he/she suffered an injustice in a disciplinary process, he/she must lodge an internal appeal against the disciplinary outcome (if the sanction was not dismissal). If this appeal is unsuccessful, or if the sanction was dismissal, the employee can lodge an Unfair Labour Practise dispute with the CCMA or the relevant Bargaining Council.


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.