Theft in the workplace is a serious misconduct that places additional pressure on a business in terms of profitability and sustainability. Each year hundreds of thousands of cases are referred to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) due to alleged unfair dismissal, of which many cases are related to misconduct that lead to dismissal.

An employer cannot dismiss an employee under any circumstances, without holding a disciplinary hearing to ensure that a fair procedure is followed and that there is a fair substantive reason (proof) for the employee to be dismissed.

Theft is defined as the action or crime of stealing – taking goods belonging to another, without permission and with the intention of permanently depriving the owner (lawful possessor) of its use and possession. In charging an employee with theft, an employer must be able to prove on a balance of probability that:

• the employee took goods which didn’t belong to him/her;
• the employee knew that he/she required permission to take such goods and didn’t have such permission;
• by taking the goods, the employee deprived the employer of its use and possession; and
• the employee didn’t intend to return the goods to the employer.

A disciplinary code is vital to ensure that there are clear rules in the workplace, with appropriate sanctions, for employees to follow.   When these rules are broken the employer can apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing. In most cases of theft, dismissal as a sanction is appropriate as the rule against theft is not only well known, but goes to the root of the employment relationship that binds an employee to act in good faith and to further the employer’s interests. This misconduct can negatively impact the employment relationship, rendering trust irreconcilable.

To prove the employee’s actions – taking the goods – the employer can call witnesses who can attest to the employee’s actions, or were present when the goods were found in the employee’s possession. The employer can also make use of cameras in the workplace, but only with employees’ permission as this can be seen as violation of the employee’s rights. To prove the employee’s intentions – aware of the lack of permission and intention not to return the goods – the employer should determine the employee’s “state of mind” by considering the nature of the stolen goods and the explanation provided by the employee.

When the employer has insufficient proof to charge the employee with theft, the employer can resort to charging the employee with related alternative offences, provided that these offences are set out in the disciplinary code. These offences include “unlawful possession of property”, “unlawful removal of property”, “misappropriation”, or even “fraud”, depending on each case’s merits.

We strongly advise employers to implement proactive measures to combat theft in the workplace. Herewith a few guidelines employers can follow:

• Use labour legislation to your benefit in drafting your employment contracts by including proactive clauses that require the employee’s permission, such as the installation of cameras in the workplace and search of employees as well as their belongings.
• Ensure that your disciplinary code is relevant and up to date regarding offences and appropriate sanctions. Also ensure that all employees are aware of what the disciplinary code entails.
• Employ security personnel. Where possible, try to outsource this function to ensure less collusion between security personnel and company employees.
• Control access and exit points to the company.
• Improve the recruitment process by including reference and criminal checks.
• Encourage employees to report dishonest conduct of co-workers.

In general arbitration awards in favour of the employee are due to the lack of following correct procedure on the employer’s behalf. We strongly advise employers to implement clear rules in the workplace and follow correct procedures with regards to all labour matters, especially dismissal and general discipline in the workplace, by acting pro-actively.

Contact the LWO for advice and assistance with these situations.
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We advise employers to address labour as a business risk proactively in order to promote a working environment with reduced conflict, friction and misunderstanding, which in turn creates a structured environment receptive for growth.

Absenteeism is a common issue in the workplace with a huge impact on business activities. The employer must address absenteeism effectively to ensure productivity.

What does absenteeism mean?

Apart from not being at work without permission, absenteeism can be seen as a broader category which also includes:

• Arriving late to work (it is still absence as long as the employee is not at work)
• Leaving work early
• Unauthorised breaks
• Extended breaks (smoke, toilet, lunch, tea, etc.)
• Feigned illness
• Other unexplained absences from the workstation or from the premises

It is the employee’s duty to commence and end duties at the times required, and/or contractually agreed to with the employer. When employees do not follow the rules, employers have the right to act in accordance with the workplace disciplinary code, which not only stipulates the rules of the workplace, but also the appropriate sanction. It is vital that these rules are discussed with employees and reduced to writing. The employers can only then prove that employees are aware of the rules as well as the consequences when these rules are broken.

How do you deal with absenteeism?

There are three important steps:

• Interview the offender and write down what he/she says.
• The employee must prove that the absence was justified.
• Reasons may be produced by the employee, but even if a reason might seem valid it can still be unacceptable – apply your disciplinary code.

The employee should always notify the employer by any means possible of his/her absence. It is very seldom that there are no means whatsoever available of notifying the employer of the absence.

Note however, that even if the employee does notify you that he/she will be absent for the day, such notification does not mean that the absence is now authorized. You have three options depending on the circumstances:

• Request him/her to come to work
• Treat the absence as authorized and pay the employee for the period absent
• Process the absence as unpaid leave

It is important to record and keep record of all incidents, including absenteeism and late coming, in an incident book or an employee file and act according to your disciplinary code. Sanction given must always be fair for the type of misconduct

Absence after permission has been refused

Desertion

When is sick leave due?

Is it paid or unpaid leave?

Firstly, is paid sick leave due? If yes, you must determine whether a medical certificate is needed.

• A medical certificate has to be presented if an employee is absent from work on more than two occasions or more than two consecutive working days within an eight-week period.
• A medical certificate is not needed if an employee is absent from work on one, or two occasions where the period of absence is for two or less working days within an eight-week period.

If paid sick leave is not due, there are two options:

• you can process it as unpaid leave; or
• you can process it as paid leave and deduct it from the employee’s annual leave (if the employee agrees to it).

When is a medical certificate valid?

A medical certificate must state that the employee was unfit to work. It is not a valid medical certificate if it only states that the employee attended the clinic, as that will only prove where the employee was that day, but not entitle the employee to paid sick leave.

A medical certificate may only be issued by a:

• medical practitioner;
• clinic nurse practitioner;
• traditional healer (registered with the Traditional Healers Association);
• community health worker;
• psychologist; or
• any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament; or
• any other health professional authorised to diagnose medical conditions.

What information should appear on a medical certificate?

What is the employer’s rights and responsibility?

Employees that report for duty under the influence of alcohol present a real problem which employers are faced with on a regular basis. The use of alcohol affects an employee’s sight, speech, coordination and reaction speed. Employees working with machinery or driving a vehicle, who are under the influence of alcohol, hold a high risk for the employer, themselves and their colleagues. It is the employer’s responsibility to create a safe working environment for all employees and must therefore always act in accordance with the disciplinary code.

HOW TO DETERMINE IF AN EMPLOYEE IS UNDER THE INFLUENCE

Labour legislation does not specify the symptoms to determine whether an employee is under the influence of alcohol. Therefore it is vital to implement an alcohol policy in the workplace. Employees can also be tested for alcohol during working hours, but only if this is stipulated in their employment contracts or in an alcohol policy, or if the employee has given his/her permission.

In general, employers can consider the following symptoms in order to determine whether an employee is under the influence of alcohol:

• Red and bloodshot eyes with enlarged pupils;
•  Slurred and incoherent speech;
• Change in behaviour;
• Staggering, i.e. the employee is disoriented;
• Attitude / Reaction;
• Out of character reaction to questions;
• Breath smells like alcohol .
• Eye focus;
• Eye / hand co-ordination /delayed reaction and coordination;
• General demeanour and appearance.

How to act when an employee is under the influence:

• Call the employee aside, preferably to an office.  Ensure that a witness is present.
• Determine whether the employee is under the influence.  Request the employee to blow into an alcohol tester.  If you do not have such a device, you can take the employee to a physician for blood tests to determine his/her alcohol level.
• If none of these methods are available, or if the employee refuses to give his/her cooperation and permission, it is vital to record his/her behaviour.  Ask witnesses to also record their observations, which must be in writing.
• If you have determined that the employee is under the influence, or reasonably suspect same, then send the employee home for the rest of the day, without pay, and request the employee to report again for work the following day.
• Follow the correct procedure as per your disciplinary code and related workplace policies.  Keep in mind that the sanction given must be appropriate in relation to the type of work performed by the employee.

• Labour Relations Act (“LRA”)
• Basic Conditions of Employment Act (“BCEA”)
• Sectoral Determinations
• National Minimum Wage Act (“NMWA”)
• Compensation for Occupational Injury and Diseases Act (“COIDA”)
• Employment Equity Act (“EEA”)
• Occupational Health and Safety Act (“OHSA”)
• Unemployment Insurance Act (“UIF”)
• Skills Development Act (“SDA”)

Before such an inspection, the employer has the right to first verify the identity of the person claiming to be a labour inspector, before granting the person access to the workplace.

How to verify the identity of a labour inspector

A labour inspector is appointed by the Minister of Employment and Labour and is issued with a certificate that states the following:

• that the person is a labour inspector appointed by the Department of Employment and Labour;
• the legislation that the labour inspector may monitor; and
• the functions the labour inspector may perform.

There are cases where persons impersonate labour inspectors, wanting to gain access to the workplace for various reasons. Therefore, it is vital for the employer to exercise his/her right to verify the identity of the person claiming to be a labour inspector and insist on a certificate and proper identification. Should the person not have the relevant documentation on hand, the employer can refuse him/her access to the workplace or contact the Department of Employment and Labour directly.

It is important to note that a labour inspector may not charge a fee for the inspection or any advice or assistance. A labour inspector may also not sell posters, products or information. The Department of Employment and Labour does not delegate any third party to conduct an inspection on behalf of the Department– none of the Department of Employment and Labour’s powers may therefore be delegated.

Access to the workplace

Labour inspectors may enter the following workplaces (premises where business is conducted, where training of employees take place and registered employment offices) at any reasonable time without notice or a warrant, to monitor and enforce compliance with labour legislation

A labour inspector may not, however, enter the residential premises of an owner or tenant without permission or written authorisation

In some instances, a labour inspector will notify employers of a planned visit. Questions that will be asked and addressed during the inspection are usually included in such a notification

A labour inspector will usually check the following during an inspection:

During an inspection a labour inspector will check various points in terms of compliance with labour legislation and can request copies documents, including but not limited to employment contracts and payslips. Labour inspectors in many instances also interview one or two of the employees. Other frequent points for inspection include:

• Proof of registration with the Workman’s Compensation Fund and Unemployment Insurance Fund, as well as proof of the last payments made.
• Is there a summary of the following legislation displayed in the workplace?
• Basic Conditions of Employment Act
• Employment Equity Act
• Occupational Health and Safety Act and the Regulations..
• Is there a Health and Safety Representative as well as committee members where applicable appointed in the workplace? This appointed person should have a letter of appointment, and the labour inspector will request the minutes of the previous meetings that were held.
• Are the employer and employees trained to recognise health and safety problems? Examples include:
• Are moving parts like drive belts and chains guarded?
• Are chemicals used safely and stored in a safe place?
• Are emergency exits clearly marked and easily accessible?
• Are fire extinguishers accessible and serviced regularly?
• Are flammable materials stored and used correctly, for instance not near fires?
• Are all electrical wires insulated and proper plugs used in your workplace?
• Does the employer have fully equipped first aid boxes on the premises?
• Does the employer report occupational injuries and deceases to the Department of Labour?
• Does the employer have clean and hygienic toilets and washing facilities provided for male and females?
• Does the employer have an attendance register at your workplace?
• Does the employer have the applicable Sectoral Determination or Bargaining Council Agreement available for the employees?
• Does the employer pay at least the prescribed minimum wage where applicable?

Consequences of non-compliance

Labour inspectors can issue notices to rectify areas that they pick up where the employer does not comply, immediately issue a compliance order. Legal implications and consequences for the employer in cases of non-compliance can include fines (between R300 (minimum) to R1500 (maximum) per employee) and imprisonment (one year (minimum) to six years (maximum)).

Employers cannot afford not to address registration and have labour related documentation, policies and procedures implemented in their businesses. Not only does it minimise the risk of disputes and uncertainty between employers and their employees, but it also ensures that the most prevalent labour legislation specific to the industry is complied with.

The vast amount of legislation that regulates labour relations in South Africa stresses how crucial it is that the employer follows the correct procedures, especially dismissal procedures.

How to dismiss an employee:

An employee can be dismissed on three accounts: misconduct, incapacity (poor work performance or medical disability) and operational requirements (economical, technological or structural reasons, which are also known as “retrenchments”). When dismissing an employee, it is paramount to follow the correct procedure.

There are two procedures:

1. Disciplinary hearing – on account of misconduct
2. Consultation – on account of incapacity or operational requirements

How to conduct a disciplinary hearing:

Procedure to follow when dismissing an employee on account of misconduct:

Your disciplinary code stipulates the rules of the workplace. It is vital that these rules are discussed with employees and reduced to writing. Only then can employers prove that employees are aware of the rules and the consequences when these rules are broken. When these rules are not followed, the employer must apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing. A disciplinary hearing must be held to ensure that fair procedure is followed and that a substantive reason has been established for the employee to be dismissed. It is also of the utmost importance that an employee is given the opportunity to present his/her case and to call witnesses.

Should a hearing be formal or informal?

A hearing can be formal or informal, but it is essential that the employer must be able to prove that a hearing was held. Our advice is therefore to always conduct a formal hearing. The employer can then ensure that all the necessary paperwork is in order if the matter ultimately proceeds to the Commission for Conciliation, Mediation and Arbitration (CCMA).

Steps to ensure a fair procedure and substantive fairness:

1. Issue the employee with a notice to attend a disciplinary hearing. The employer must state the date, time and place where the hearing will take place. The notice must also contain a detailed description of the charges brought against the employee, including the date, time and description of the incident(s). We advise employers to provide the employee with at least 48 hours’ notice of the hearing, excluding weekends and public holidays, to allow him/her to prepare for the hearing.

2. Hold the hearing on the date and time proposed. Even if the employee does not attend the hearing the employer should proceed to present the evidence to the chairperson. It is up to the latter to determine if the employee had sufficient notice of the hearing and if the employee was absent for a valid reason or not. At the end of the hearing the chairperson recommends to the employer to either dismiss the employee or not.

3. During the hearing the chairperson will ask the employee to plead guilty or not guilty to the charges brought against him. After this, the employer presents his case by presenting evidence and calling witnesses. The employee is then allowed to present his/her case and cross-examine the evidence presented by the employer. Thereafter, the employer may cross-examine the employee’s evidence and witnesses. At the end of the hearing both parties make closing arguments.

4. The chairperson must make a finding of guilty or not guilty. The employer is then asked to present aggravating factors, while the employee is asked to present mitigating factors. The chairperson then determines the sanction to be imposed on the employee. If the chairperson determines dismissal to be the appropriate sanction, the employee can be dismissed with immediate effect.

Who should be the chairperson?

The chairperson of a hearing should always be an objective and impartial third party to the matter, preferably with knowledge of labour law procedures and requirements. We always suggest that the employer ask a legal representative from an employers’ organisation. If an impartial person is not available on the premises, you can ask a neighbour, if he/she has sufficient knowledge of the procedures to follow. It is important to prove at the CCMA that the chairperson was not biased.

A commissioner at the CCMA will always enquire:

• Was there a rule in the workplace?
• Is there proof that the employee was aware of this rule?
• Did the employee act according to the rule?
• Was there progressive warnings (according to the offence)?

How to hold a consultation:

• Issue the relevant parties with a notice in writing of the intended consultation.
• Provide the parties with at least 48 hours’ notice of the consultation, excluding weekends and public holidays, to allow preparation for the consultation.
• Hold the consultation where the parties discuss the issues specified on the notice of consultation, determine what steps should follow next and agree on outcomes to be achieved after the consultation.
• This might include providing the other party with further training and or counselling and evaluation in the case of poor work performance; or sending an employee for an occupational medical assessment for medical incapacity; and for the employer to provide feedback on points discussed during the retrenchment consultations regarding possible alternatives raised
• Hold follow-up consultations where necessary to evaluate the current position of affairs.
• If the desired outcome is not reached within the stipulated time period or where the employee is deemed to be permanently incapable of performing his/her work (in the case of incapacity or poor work performance procedures), then the employer may provide the employee with a notice of hearing where similar procedures as a disciplinary hearing for misconduct will be followed.
• With matters such as retrenchments, once all of the consultations have been held, and where necessary the employer has waited for the required time to pass, the employer can give notice of the retrenchment to the affected employees.
• Ensure that a written minutes of the proceedings are kept on record and available for any future disputes that might arise.