Theft in the workplace

Theft in the workplace is a serious misconduct that places additional pressure on a business in terms of profitability and sustainability. Almost 80% of cases referred to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) are due to unfair dismissal, of which most 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 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 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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