By Charlotte Clarke and Musa Mathebula, Candidate Attorneys and Pierre van der Merwe, Partner
Introduction
This article examines the appropriateness of the sanction of dismissal of an employee for theft in the workplace, the effect of dismissal of an employee for theft, and the consequences that this may carry for the employee and the employer where the theft relates to the unlawful appropriation of the employer’s money.
From the outset, it is important to state that no dismissal may take place unless there is a substantively fair reason related to the employee’s conduct, capacity or the employer’s operational requirements. A dismissal will be rendered unfair if the employer failed to follow fair procedure before such dismissal, no matter how compelling the reason for dismissal may have been.
Summary Dismissal for Theft
Theft is viewed by the courts as a serious disciplinary offence and normally justifies dismissal at first instance regardless of the value of the property involved. It will not avail the employee the length of service which he/she has served, the absence of prior warnings, whether the property stolen was subsequently returned or even if the employee derived no direct benefit from such theft. The sanction of summary dismissal for theft, as such, is seen in most employers’ disciplinary codes in the workplace.
There has been extensive case law regarding the appropriate sanctions for theft, especially in the case of petty theft. It has long been held that summary dismissal is the appropriate sanction for theft. In Central News Agency (Pty) Ltd v CCAWUSA & another,[1] the court held that a basic tacit term of any employment agreement is that the employee will not steal from the employer and that it is axiomatic to the relationship between the two parties that an employer should be entitled to rely on an employee to not steal from it. This trust was held to be “basic to and forms the substratum of the relationship” between the parties.
Summary dismissal is not always the appropriate sanction for petty theft. In the case of Nkomo v Pick ‘n Pay Retailers,[2] where an employee was dismissed for stealing and eating a pie belonging to the employer, it was held that the employer should impose sanctions consistently, but should not be inflexible. An employer should take the employee’s personal circumstances into account when imposing a sanction for petty theft. In Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others,[3] it was held that a dismissal will only be fair if it is procedurally and substantively fair. The law does not allow an employer to adopt a zero tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence.
Conversely, in Anglo American Farms Boschendal Restaurant v Komjwayo,[4] where an employee stole a cool drink, the court held that the true test is not the value of the item stolen, but whether the employee’s actions had the effect of rendering the employment relationship intolerable.
What can be seen from the varied scenarios above is that there can be no hard and fast rule when it comes to summary dismissal for theft and an employer must be sure to examine the circumstances of the employee/s concerned, the item stolen and whether there is a breach of a trust relationship. The employer should also consider alternatives to dismissal, such as a final warning, or the reassignment of an employee.
Who to dismiss?
A problem that often arises is determining which employee has stolen. Should the employer conduct a search of the employees, this must be done properly and decently as if it is not, this could constitute a violation of the employees’ right to dignity and privacy. It is also worth noting that the refusal by an employee to submit to a reasonable search may justify the dismissal of such employee in certain circumstances. An employee who refuses without reason or explanation to submit to a search lays herself open to suspicion. Such a refusal may constitute sufficient reason in appropriate circumstances to warrant dismissal where there is, holistically, sufficient evidence to prove on a balance of probabilities that an employee is in fact guilty of theft.[5]
Prevention and Combatting of Corrupt Activities Act 12 of 2004.
Should an employee be dismissed because of theft of monies belonging to the employer, the employee may, in most instances, be summarily dismissed after following appropriate disciplinary procedures. Unfortunately, this may not be the end of the employee’s misfortunes. After 31 July 2004, and in terms of section 34(1) of the Prevention and Combatting of Corrupt Activities Act 12 of 2004 (“PCCA”), an employer who knows, ought to have reasonably known, or even suspects (this means even before a dismissal takes place) that an employee has committed an offence of theft, fraud, extortion or uttering a forged document involving an amount of R100,000.00 or more, must report such knowledge or suspicion to the South African Police. Section 34(2) of POCA makes it an offence for any employer privy to such knowledge failing to report it to the police and the employer may be liable for a fine or up to 10 years’ imprisonment.
Conclusion
An employer whose employee has been found guilty of theft must take note of all the circumstances surrounding the theft. An employer must ensure that a proper and fair process is followed prior to the dismissal. The employer must be consistent in its approach, but must still ensure that the sanction imposed is appropriate when considering all of the circumstances. The employer must also comply with its obligation to report in terms of PCCA, or may themselves be guilty of an offence.
[1] (1991) 12 ILJ 340 (LAC)
[2] (1989) 10 ILJ 937 (IC)
[3] (2015) 36 ILJ 2273 (LAC)
[4] (1992) 13 ILJ 573 (LAC)
[5] SA Commercial Catering & Allied Workers Union & others v King William’s Town Fast Food CC t/a Chicken Licken (1996) 17 ILJ 401 (IC)
