Dismissal for theft

Jul 14, 2010

Articles

In the not-too-distant past commissioners and Labour Court judges had no qualms to rule
that the dismissal of someone for theft was fair. In a number of cases the Labour Court
and Labour Appeal Court (LAC) held that the value of the item stolen was immaterial: theft
is theft and goes to the heart of the relationship of trust that is supposed to exist between
employer and employee. Some even held that mitigating factors are irrelevant in such
cases.

However, in Shoprite Checkers (Pty) Ltd v CCMA & Others the LAC held essentially that
theft should be treated like all other forms of misconduct and that mitigating factors must
also be taken into account. These will include the circumstances of the theft (in this case
the employee was caught on camera on three occasions taking and eating food belonging
to the company); the employee’s length of service (he had 30 years of service); the
employee’s disciplinary record (his was clean); and the value of the items stolen – it was
common cause that the value was not high, although the exact amount could not be
determined. Although the LAC’s decision was later overturned on appeal by the Supreme
Court of Appeal (the SCA), this was on technical legal grounds that did not disturb the
LAC’s decision on the merits of the case. The ultimate outcome was that the employee
was reinstated with a “severe written warning”, but not with full retrospective effect.

The Code of Good Practice: Dismissal, which refers to “gross” dishonesty as a possible
ground for dismissal, provides some support for the court’s view that not all forms of
dishonesty justify dismissal.

The practical import of the LAC’s decision is that an employer who defends its decision to
dismiss someone for theft before a commissioner should try to present evidence to prove
that –

  • All the elements of theft are present, i.e., unauthorised possession or removal of the
    employer’s property with the intention to steal.
  • In the circumstances of the particular case, the theft caused a breakdown in trust
    and made a continuing relationship intolerable. This may include factors such as
    the value of the item stolen; the circumstances of the theft (e.g., well planned and
    not a spur of the moment action); the nature of the employer’s business and its
    particular circumstances (e.g., a retailer trying to limit stock theft); actions taken by
    the employer to combat theft; the impact of the theft on the employer, its
    reputation, or others; the employee’s conduct during the investigation of the
    allegations (e.g., refusal to cooperate, concealing evidence, etc.) and the
    employee’s lack of remorse.
  • The particular mitigating circumstances of the case (e.g., long service and a clean
    record) do not detract from the seriousness of the situation.
  • Employees have been warned about the seriousness with which any form of
    dishonesty, including theft of any item irrespective of its value, is viewed.

This information must be supplied through a witness or by way of documentary evidence. One cannot merely raise it during closing argument.

Using the allegation ‘theft’ in the disciplinary notice may also be a problem if an employer is unable to prove that all the elements of theft are present. We would therefore encourage employers to rather use an alternative allegation, such as gross dishonesty or unauthorized possession of the employer’s property. Better still, one could merely allege gross misconduct without labeling the nature of the misconduct. Such an allegation might read as follows: “It is alleged that you have committed gross misconduct in that on you removed company property without authorisation; alternatively, were found in possession of company property without authorisation”.

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.

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