# Regulatory Compliance Category > Labour Relations and Legislation Forum >  Dismissal for theft

## Dave A

If an employee is found guilty of theft, is there any valid argument in mitigation against instituting immediate dismissal without notice?

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BBBEE_CompSpec (09-Dec-09)

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## BBBEE_CompSpec

If you caught the person red handed, why did you not report the matter to the police to start with? What was stolen and to what value? You are expected, by law, to report the case. If the person was not caught red handed but was suspected of theft, how did they find the person guilty? What mitigating circumstances can there be if a person was caught for or even admitted to theft?

Theft is theft. The LRA is perfectly clear as far as theft or fraud is concerned. It is a first offense dismissal. Summary dismissal. There is no excuse for theft, unless you really pay your employees very badly.

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Dave A (08-Dec-09), tec0 (08-Dec-09)

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## Dave A

It's a cheap cellphone. The guilty staff member volunteered an AOG once it was pointed out that the site had security cameras and we would be able to identify which staff member had serviced the affected area.

Next problem. How about accessories? This staff member's supervisor was informed by the staff member of the theft once they left the premises - hence knew about the theft, did nothing and actually tried to cover for the guilty party by attempting to provide an alibi when I first informed staff there had been a complaint (before I had started my investigation).

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BBBEE_CompSpec (09-Dec-09)

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## BBBEE_CompSpec

Let me attempt to answer you with an amicable answer. I have thought about it for two hours now, ahead of my first chemo today.

You are going to have to dismiss two employees to keep the precedent in place. Both are the thief.

There is no such thing as a cheap cell phone. Whether you steal R5 or R1000, theft is theft. You have a series of misconducts. Dishonesty, deliberate psychological damage to the person who became the victim, mistrust or deliberate damage to the owner of the business or the employer, if one person is covering for the accused then all are covering for misconducts taking place in your business. Who do you trust and who don't you.

The Whistle Blowers Act protects the supervisor and yet he chose to still pull the wool over your eyes. If they stole from a fellow employee good and well. The damage is contained. If they stole from a client you have immense damage and have to put damage control into place. Damage like this could close down a business.

Not only did the supervisor cover up the story he was prepared to go the extra mile to protect the employee concerned, not taking into account the very hands that feed him and his family. His future is gone due to an act of good faith toward the thief.

Both are guilty of a very heinous crime. Both are guilty of a very serious fine.

Let me give you an example that I followed once when a client asked me to sit the shair in a theft case. She wanted to keep one member and dismiss the other.

After explaining to her that I had to either dismiss both or keep both she asked me to go ahead and she would consider my findings.

The members had taken a sealed magazine off the shelf in a general dealer and read it in the toilets. They had been caught on camera.

They then returned the book to the shelf unsealed.

The manager of the dealer approached them and requested an explanation. They told them he was imagining things and that they had done nothing wrong.

The book was removed from the shelf and not paid for - incident - theft. The seal was broken - they knew what they were doing - incident - gross insolence or dishonesty. They read a book that should have been paid for and returned it to the shelf - incident - gross insolence. They lied to the manager when asked (and pointed out on camera) - incident - Gross Dishonesty. I have four serious offenses that carry first offense dismissals. Only one is summary dismissal. The theft case,

Do I involve the police? Yes. It is legislative. The Anti Theft and Corruptions Act.

I listen to both sides of the story. I decide on three forms of punishment. They have a choice. 1. I dismiss both of the employees based on, now, there own admittence to the taking of the magazine. They admit they knew they were doing wrong. 2. I dismiss them but suspend the sentence, so to speak, for 12 months. This I learnt from Prof. Barney Jordaan. He is the HOD of the Faculty of Labour Law at UCT. As they are already dismissed, if they do not convince me, after the 12 month period is up, that they are willing to change, they leave without a further hearing. If there is another incident wihin the 12 period, they walk and don't come back to work. 3. they each pay a R500-00 fine and get a Final Written Warning that will remain on their records for the full 12 months. 

They chose no 3. Even though it may have been the most expensive magazine they had ever bought, they kept their jobs. Not a very orthodox sentence and can only be legal if the employees agree to it, without coercion, but it works. The company has not had another incident since then. That was three years ago.

If you have a good worker and a bad worker involved you will find yourself at the cross roads as I did. There is no excuse for theft and you have the right to dismiss both for the incident. You can still lose at CCMA if you dismiss one and keep the other. Sentence must be the same. In SA we don't use the word accomplice. Both are guilty, equally, of the same crime.

The decision at the end of the day is yours. You can keep or change the precedent. Don't give in to your feelings, follow the letter of the law. Especially this time of the year. They should have thought about their families before the deed was done.

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Dave A (09-Dec-09), georgevorster (23-Jan-12)

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## Dave A

Thanks Shaun. Some really good food for thought there. I'd also arrived at the conclusion that both employees will have to be treated the same, albeit by rather more complex reasoning.

Just to add some more context - 

We have always dismissed for theft without hesitation in the past, but your point on poor pay is relevant. This is a part-time employee who seemed set for permanent employment in the new year bar mishap. However, there is little doubt she is under financial duress at this point. She came clean with extraordinary haste once it became clear that the net was closing in, and the confession was frank, complete and remorseful.

ASIDE: What the heck is it about cellphones?

I've had one suggestion that mercy (properly presented) might lead to better loyalty. However, on the flip side I have a concern about the message this sends out, particularly to other staff members and clients. 

I find the involvement of the supervisor deeply disturbing. I'm afraid uBuntu can go too far. 

Your suspended sentence option might provide a middle road...

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BBBEE_CompSpec (09-Dec-09)

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## wynn

Report the theft to the police, it is required. It will also prevent the issue backfiring on you 6 months from now if there is another instance.

If for some reason, in the future, you wish to get rid of one or both, a signed confession with resignation letter is worth it's weight in gold if you offer to dismiss the charges.
You get to avoid any CCMA crap if you decide to get rid of the perpetrators.

leopards seldom become tigers.

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BBBEE_CompSpec (09-Dec-09)

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## sterne.law@gmail.com

> Report the theft to the police, it is required. It will also prevent the issue backfiring on you 6 months from now if there is another instance.
> 
> If for some reason, in the future, you wish to get rid of one or both, a signed confession with resignation letter is worth it's weight in gold if you offer to dismiss the charges.
> You get to avoid any CCMA crap if you decide to get rid of the perpetrators.
> 
> leopards seldom become tigers.


Hello Dave,
I am just on my way out, so will reply later. In the mean time I have attached a piece on Dishonesty which should help.

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BBBEE_CompSpec (09-Dec-09), Dave A (09-Dec-09)

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## Dave A

Very useful document, thanks Anthony  :Thumbup: 

Three big takeaways for me there:
The difference between consistency and inflexibilityBalance of probability vs beyond reasonable doubtAspects relating to polygraph testing

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BBBEE_CompSpec (09-Dec-09)

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## sterne.law@gmail.com

Some further and more case specific comment -

The issue of summary dismissal – there is no legislation or code as to when notice in a dismissal instance, is with or without notice. As a rule every dismissal tends to be without notice or summary dismissal. There is a school of thought that dismissing with notice is technically a less serious sanction than summary dismissal and is therefore an extra line of defense when an issue is referred. To be honest I think most employers go for the in for a penny in for a pound and where theft is involved, particularly of company property I doubt if any employer wishes to pay notice.
To mitigating – I think 99% of the time the mitigating circumstances will not alter much as to the sanction. Essentially the key will always be if the trust is broken or not as to if a sanction less than dismissal is appropriate. Although most people will argue, correctly so, that any theft/dishonesty breaks trust, the real issue is arguably the nature of the job. A delivery guy who stole a pie from the forecourt shop might be guilty of stealing and yes the question is can you trust him, but he can still arguably do his job without you peering over his shoulder all the time, whereas if it is the counter sales person who ate the pie that would be different. There is also a case for employees who admit or plead guilty. It would appear that in labour matters pleading guilty does not reduce the sentence unlike a criminal matter, but this is more as a result of the limits on type of sentence in comparison to a criminal court.  A criminal matter I could hand down a sentence of 3 years instead of 6 because the defendant pleaded guilty and in mitigating was hungry. In the labour context my choice is to dismiss or not to dismiss, in a nut shell. 
The issue of reporting the matter to the police etc,etc needs further comment. As per my post with attachment, reporting the matter to the police has consequences, especially if an arrest takes place. Furthermore one has to, without condoning theft, ask if it is right to cause so much grief to a person by adding a criminal charge to, in all likelihood their job loss, as a punishment. A person stealing R5000 deserves all the extra punishment, but the theft of a cellphone, which must be punished, one needs to understand some of the reasoning behind it and believe that job loss is a sufficient punishment.
I must disagree with 2 earlier posts in that as far as I am aware there is no legislation or prescription that says a crime must be reported. There is of course a implied responsibility is perhaps the better turn of phrase. However, and this goes to the supervisors role as well, the common law which in turn is read into the employment contract as a term, and is normally further entrenched via the code of conduct in a company, requires an employee to always act in good faith and in the interest of the company. Thus the supervisor has not done this. Even if the supervisor pleads fear or intimidation as the reason he did not talk up, it stands to reason that he cannot perform his task as a level of management of the company and hence best he grab his coat on the way to the door. As to if he is dishonest or a party to the theft the elements of criminal law will apply, of most importance is the intent and did he benefit. BUT there is no doubt that the trust relationship is irretrievably broken down.
To suspended sentence -  a warning, particularly if final, is in itself a suspended sentence. 
If you feel strongly that dismissal is not the appropriate sanction then you could consider a suspension without pay, which is allowed as an alternative to dismissal.

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Dave A (09-Dec-09), wynn (10-Dec-09)

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## wynn

Sterne.law
My reservation is that if you do not report the theft to the police, if the issue escalates, because you are aware of the circumstances, can you not also be considered an accessory to the theft.
What happens if two weeks later they find your staff member also stole the R5000.oo cash kitty (from say the sale of scrap metal) that was supposed to pay for the staff party.

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## BBBEE_CompSpec

Legislation is legislation. You cannot accuse someone of theft if they have not been found guilty of the said offense. CCMA has a field day with this point.

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## BBBEE_CompSpec

I one day overheard a Telkom manager who caught an employee stealing a vehicle from the yard tell the said employee that prior to 1994 we could shambok an employee who stole. The pain would be now but the employee would continue working. Now we have to jail you if you steal. The principal is the same, only the shambok has been replaced by the SAPS and Correctional Services.

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## Dave A

> You cannot accuse someone of theft if they have not been found guilty of the said offense.


However, you can dismiss someone on a balance of probability test, but only convict if beyond reasonable doubt. Now how does this match up? Why allow a lesser standard for dismissal if you can't dismiss without a conviction?  :Confused:

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## BBBEE_CompSpec

We are not asking you to dismiss with a conviction, just report the case. It holds up in CCMA. As long as you have a CR number.

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## Dave A

OK - new problem. One employee bust for soliciting our clients for "private jobs" in competition to our services. (What can I say - it's been a bad week  :Frown:  )

Duly suspended, and the disciplinary is set down for Monday. But what would the charge be if taken to the cops - Fraud, theft??? 

I know it's a commercial crime, but I don't think dishonesty is going to cut it as a charge with the police.

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## BBBEE_CompSpec

Its against Bargaining Council rules for an employee to hold down two jobs without the primary employer's permission. If the work was done during your working ours or he is using your tools, or parts it can be classified criminal and you can have him charged with theft. Otherwise it is classified as a loss of earning to the business. He must be ordered to pay back all monies earned from work done with your clients. At your current rate and not the rate he charged)

Calculate the total loss of earnings that you know about. Invoice him for the amount. When he refuses take him to the cleaners.

Charges that can come out of this misdemeanor: Gross Dishonesty - how did he obtain the parts to do the job, he must have bought them from a wholesaler using your company's name; He may have done the work at a cheaper rate; The info on your database is private and confidential. Until your client decides to go somewhere else for the work to be done, the client belongs to you. (I had a family member who got 8 years for stealing Standard Bank's clients - he had resigned as a consultant at Standard Bank - He then consulted with prominent clients from the bank - the bank took him to court and the judge made an example of him - he sentenced him to eight years behind bars - he served three for good behaviour).

Gross Insolence -  A total lack of respect toward management, the company and what the company offers as a service and what it stands for.

If he did charge a lower price - fraud (Criminal)

If he used your time, parts and tools or equipment - Theft (Criminal)

All the charges, according to schedule 8 of the LRA carry a first offense dismissal.

Then you have the bargaining rules. While he is doing the work for you he is covered by all aspects of the ECA SA. When working on his own he isn't covered at all as he is not registered as a company.

You have him by the short and curlies. Make use of what you have at hand.

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Dave A (11-Dec-09)

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## Dave A

Just to note, this was in the pest control company - not covered by a bargaining council. Of course the rest has relevance, except it is impossible to determine the extent of losses to any meaningful extent. I've been through this before many years ago. In that instance, cases where we had been defrauded by this individual kept popping up even two years later and it was only after the dismissal (on the first instance discovered) that any meaningful volume of discovery was made.

When a client calls us to say they've seen a rat during the day, we know that one rat is just the tip of the iceberg. Much the same applies with this sort of problem.

A year from now I might have some idea of how much might have been involved, and it still will be a fraction of the actual amount.

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## sterne.law@gmail.com

The concept of reporting something or everything to the Police is to be blunt, Ludicrous. By implication that means that every dismissal must be reported to SAPS..- do the maths.
Furthermore, the nature of a labour matter is that of a civil matter, one side needs to prove their story is more likely than the other, a totally different concept to criminal law.
Surely any form of logical thinking would be that the mere fact that a matter has been reported to Police does not have any evidencial weight. If this was so I believe the only words to use would be anarchy, disorder and chaos.

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## Alan

> Its against Bargaining Council rules for an employee to hold down two jobs without the primary employer's permission. If the work was done during your working ours or he is using your tools, or parts it can be classified criminal and you can have him charged with theft. Otherwise it is classified as a loss of earning to the business. He must be ordered to pay back all monies earned from work done with your clients. At your current rate and not the rate he charged)
> 
> Calculate the total loss of earnings that you know about. Invoice him for the amount. When he refuses take him to the cleaners.


Yowza, you got way too much time on your hands..........If the employee has admitted to the offence and understands that it is a dismissible offence, then pay him his due, tell him to f@%k off and get on with business as usual.

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## BBBEE_CompSpec

Cover all your bases. Far too much money is claimed by the CCMA for procedures and evidence not covered.

As for reporting all cases - We didn't write the laws. The government did and not all cases are fraudulent or Theft cases. If you have a large turnover of theft or fraud then I suggest you do an audit of skills and check your minimum wages paid.

As for the employee accepting liability for the fraud, if he is prepared to sign a resignation stating he will have no more claims against the company and that the matter will not be taken further and that he wrote out the resignation without coercion or force, by all means let him go. He must also state he fully understands the contents of his resignation.

If I was the union organizer and these points were left out and you did not report the case to the police I would claim no less than 12 months salary for your oversight. Leave no stone untouched. Check every detail. The figures of losses by companies who lose their cases at the CCMA and CDR is exceptionally high. Don't be a caualty due to an oversight.

There is a voluntary resignation letter in the Toolkit.

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## sterne.law@gmail.com

Well you are welcome to take me on at the CCMA. I would sue your arse,as the employer, in a civil capacity, if I were the employee.
Other than the time and in all probability the SAPS view, if you are going to make a case against an employee, lets stick with the theft theme, you had better make sure that it is rock solid and you would need to pursue the matter to completion. This that in itself is going to cost you a whack of time and money. It would take a year or two plus at least 4 or 5 appearances at court if you are lucky. If you withdraw the matter or fail to convict, remembering that a criminal matter requires a guilty without doubt result, the civil case against you is a slam dunk!!! 

Furthermore, I turn to Workplace Law, written by  John Grogan, arguably the foremost writer on Labour Law in SA, and a practicing advocate, former commisioner and judge, hence there can be no doubt to his credentials - and I can find absolutely no mention of the concept of reporting every matter to the SAP, as you suggest. NOW I think it is safe to conclude, that if this reporting idea was of such importance, a learned practioner and writer would make a mention of it in his works.

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BBBEE_CompSpec (11-Dec-09), wynn (17-Dec-09)

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## BBBEE_CompSpec

Ok, Anthony, I don't want to rock your boat too much. I think that the decision actually lies with Dave as to how far he is prepared to take the case. I am not prepared to make an enemy out of you based on a decision.

I have this worked into my routine. If I make the case of theft and get my CR number the CCMA accept I have made the effort. If I decide to drop the charges at a later stage the SAPS automatically take over the matter and investigate it further.

That is only when you catch the employee red handed.

If the employee admits guilt then let him sign his life (or Job) away. Just get him to exonerate the company of all liability should he take the matter further.

My concern is not whether the matter is reported to the police but whether the company is covered. I would rather have a resignation than a dismissal. If I request the resignation then I am targeting myself for a Constructive Dismissal case against me.

I apologize if I rattled your cage. It was not intentional.

As far as Alan is concerned. I have been involved with the Industrial Courts and CCMA as far back as their inceptions. I have built all these matters into my routine. I have to cover my client 100% before I consider a dismissal. If I can get the resignation without any coercion from my side it becomes a bonus to me.

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wynn (17-Dec-09)

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## Dave A

The way I see it, the only way I can stuff this up is procedurally. The evidence is slam-dunk and I've got an AOG (no coercion, freely given - if acknowledging guilt in the face of overwhelming evidence still constitutes free choice). I believe both parties wish to see this concluded and move on with the minimum of delay.

So I'm following exactly the same process as I do with any other disciplinary. This process has survived scrutiny at the CCMA in the past so I am confident that this way there will be no problems. 

Even if I did have the urge to lay criminal charges (which frankly I don't), unlike the government I don't have the luxury of a captive clientÃ¨le who, like it or not, are ultimately footing the bill to have suspended staff on the payroll lounging around waiting for the judicial system to see its course in two years or more time. And that's before we even get to the prospects of the judicial system doing its job in seeing this all the way through. I also strongly suspect said staffer will not simply lounge around, but take the rather splendid opportunity presented of having his daily needs covered and lots of spare time on his hands to set about preparing his future as a hugely successful entrepreneur.

So if I did have such an urge, I would *still* pursue the dismissal first, and *then* only lay criminal charges (effectively based on the findings and recommendation of the disciplinary committee/chairman as applicable). 

My number one priority is to have this employee stop costing me money and off staff. The rot must be cut out. If the law has a problem with that; if it can't see the sense in that and support that, pleeease lay a charge! Because the crass stupidity of it needs to be exposed.

(Sieg is right - The law's an ass  :Yes:  , but it's supposed to serve justice and the best interests of the people too  :Wink:  )

If there is precedent or law that *obliges* me to lay criminal charges, let's have it. Otherwise someone has to be the first victim in settling the matter, and I'm quite accustomed to being in that position if it comes to that.

ps. I also have a concern around accepting a resignation, but perhaps I'll get to that later.

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BBBEE_CompSpec (11-Dec-09)

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## BBBEE_CompSpec

I leave the option of resigning to the accused. Its the only way he/she can walk away from this situation without having to please explain the dismissal. I have dealt with many theft cases in the past that have gone sour. Hence the laying of the charges. You can see where this method comes from. Most of those who are for the charges being laid, on this forum, are from the East London area, myself included. Its a very corrupt area with the CCMA siding with the unions. We cover our backs.

In Jhb the CCMA is too busy to worry about the theft case. They want to hear evidence and based on such evidence the ruling or award is made. I do have three pending corruption cases against the CCMA in Jhb due to the interference of large business in the process.

Dave follow your procedure as you have in the past. You have three months in which to lay the charges. Do this only as a last resort. You have not had a problem in the past and you shouldn't have a problem in the future. 

I am just sorry I took this matter too far. My apologies.

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Dave A (12-Dec-09), wynn (17-Dec-09)

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## Dave A

No need to apologise, Shaun. It's constructive engagement. I believe the series has led to a very telling observation - not all regions of the CCMA may be applying the same standards!

In fact it is this issue of standards and the overly technocratic approach that is seen at times that is cause for my reservation. My concern with accepting a resignation once a formal disciplinary process has commenced is that in a narrow technical analysis this could be construed as a constructive dismissal. The fact that you dropped disciplinary proceedings *because* the employee resigned could be ignored - a technocrat might suggest the mere fact you abandoned proceedings is sufficient to suggest the cause of proceedings was not valid, or at least can be excluded from consideration in assessing an application for constructive dismissal!

I have this impression that the CCMA cannot be relied on to take a holistic approach.

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BBBEE_CompSpec (12-Dec-09), wynn (17-Dec-09)

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## BBBEE_CompSpec

The Late Derek Jackson wrote an article on Resignation in the light of a Dismissal Hearing. I have a copy somewhere.

He states that once the Hearing Process has been put into place and the accused resigns, the process is to still take place. You now use it in the form of an Exit Interview. You still need to establish all the facts. You may still pass sentence. You can still dismiss.

At the point of the decision to dismiss you can introduce the accused's resignation.

The CCMA, on the other hand, is unqualified to handle any cases beyond Conciliation. Unless you are using all of Tokiso's resources to make decisions.

What the government has created, through the forming of the CCMA, is "backyard attorneys".

In a Civil Court you need a Magistrate, who has had at least 15 years of formal training and experience, to convict an accused of a misconduct.

Within the CCMA you have small Mafia's ruling the roost. Not very qualified, experienced or bright. Case management sucks. They haven't a clue as to the difference between a Bargaining Council, BCEA, or a Sectoral/Wage/Ministerial Determination.

However, we have to make do with what resources are made available to us. Not many Practicing Attorneys venture into Labour Law. It's too time consuming. If the Practice is large enough they will construct their own Human Resources Division.

Each HR Consultant formulates his/her own format of dealing with the CCMA. We go by our different experiences with the CCMA and their Commissioners. We study Case History.

I know this is a forum of debate. I also get hot under the collar especially when I am challenged, at the CCMA, by an incompetent Commissioner. I too have to sit in the sin bin to cool down. But I can also get carried away in a debate. I should actually be apologizing to Anthony. I actually got my Final Training under Eugene van Zeidom at the CCMA in Pietermaritzburg.

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## Dave A

Thanks Shaun for this post on resignations when there is disciplinary action. It certainly goes a long way to addressing my concern on this aspect.

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## BBBEE_CompSpec

I knew I had read it somewhere. Glad I could clear up the matter.

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## manhav

Hi guys. I found this discussion quite interesting, and it is clear that all of us have various opinions regarding theft.

In the first instance, it is not a requirement that the theft needs to be reported to the SAPS. I think that the employer, in deciding whether to report the crime to the SAPS, give consideration to a few factors. The main considerations, I think, is first the value of the theft and the impact that it has or is going to have on your business. The next consideration is the impact that a criminal trial is going to have on your business. Remember, the employee (thief) will in most instances deny the theft, which will result in a trial. You, as the employer, and some of your staff, who assisted with the investigation of the case, will be called by the State to testify against the employee (thief). I can assure you (as I do a lot of criminal law) that the case will be postponed quite a few times, even after it has been set down for trial. Thus, you will spend a few hours at court each and every time, until the matter has been finalised. Thus, you end up having unproductive days, which may result in a loss of income.

The next issue is this - yes, theft is a dismissable offence. The reason for that is that the trust relationship between the employer and the employee has broken down. But whether theft warrants summary dismissal is not that clear cut as some of us may think.

In recent cases the Labour Court and Labour Appeal Court have decided that there is various factors that needs to be considered in deciding whether to dismiss an employee who has been found guilty of theft. Some of these factors are the value of the theft (item stolen), the number of years service of the employee, and even the employee's disciplinary record. It was found in these instances that a summary dismissal is too harsh, and that a final written warning was the more appropriate penalty. In these instances the employees were re-instated.

Manie Havenga
Havenga & Viljoen Attorneys
mhavengaprok@openisp.co.za
018-7712131
0726003973

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Dave A (21-Jan-10)

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## desA

A very interesting case - with so many solutions.

In gregarious societies, an appeal to the person's elders is often useful. This causes the elders & possibly the whole extended family, to lose 'face'. The crime is now not one of employee against employer, but one of junior member causing their family to lose face in front of a kind, fair person (employer).

It may be a thought to request that the accused bring in their elders, for a straight discussion.

I would agree that this methodology may seem radical in the SA context, but, it does present an alternative to the scenarios that seem to be going for the jugular. Allowing a gregarious solution to emerge can often be both interesting & rewarding. Always allow for the possibility of 'saving face'. The elders will generally advise wisely in such matters, & often exact penalties on the guilty party far in excess of what an mlungu's court could ever achieve.

Food for thought. We are all equal under the sun. This is the important factor to consider here.

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## Petrichor

It is threads like this one, that make TFSA the great forum that it is. Thank you all that contributed, as this will help me immensely. Just had an employee who decided to take something that did not belong to him, so I am now a bit more prepared that I was before reading the posts.

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## Citizen X

No, I haven't come across any leading case of any mitigating circumstance that can sucessfully prevent or delay the ultimate sanction of theft.

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## LDV13

THEFT / FRAUD - unsure on how to proceed
I have a similar issue / uncertainty :

Some background - small company, 'service delivery' / health sector and my "2IC" is the employee i am questioning

Things started to go missing (each time a value >R10 000) - as there was no direct proof and as the employee is in charge of every other department, I thought it might be a over reaction on my part and I started taking measures to audit stock. The job comes with a lot of freedom and is based on trust. That being said there is a JV / service level agreement in place with another company (later found out that my 2nd in charge has all savings etc invested in this company - this bothered me already as it is kind of conflict of interest)

Nonetheless, I chose to believe that I am imagining things and carried on - there have now been several other incidents - too many to ignore - i was informed that this same person was using some of the other employees to fulfill tasks for the other company - i.e courier type of errands - there was a whole separate 'group chat' where communication would take place - all this was without my knowledge / consent - but as the person in question is their direct line manager - they obliged as it was assumed instructions came from me. 
During this period it became serious enough that it interfered with my business - therefore I once again took steps to try and relieve the employee of such free reign and put an impartial party in charge thereof. 
6 weeks later I received a resignation letter.

However, in the meantime i had to go through proper channels to request security footage of one or two of the weekends which I determined were the most recent - only received this footage now - which confirms my suspicions though I am unsure if it is enough proof - footage shows employee over weekend (specifically a weekend this employee was not on duty) entering the office on 4 separate occasions, once with the sister company owner (who in the meantime refuses to enter into a conversation after abruptly terminating any service delivery) On every occasion the employee enters with nothing in hand and leaves with boxes / box in hand (these items are minimum R5000 each) - one clip shows entrance with box and leaves with same box - this is consistent with items missing - size / weight wise and thus these items are obscured / hidden
Points of note - 1. was not supposed to be there over the weekend 2. other person accompanying my employee is competition and central to all the funneled services, tasks, errands and stock. 
These are but a few examples - too many to mention - using company card for personal use, using same card for fuel of sister companys car, using the couriers (both the parties mentioned) while being paid by mine as well as petrol being paid by company - thus other company profits, is furnished with stock staff and groceries - and is paid for services rendered - (and accounts all paid by me)
Most of these matters are difficult to definitively prove - but there is a pattern and I would like to take matters further 

my thoughts are - immediate dismissal without pay and criminal charges of fraud and theft as well as the other party for acceptance of stolen goods? (value thus far > R500 000)

Need advice

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## Justloadit

You have to build a case for dismissal.
I suggest you contact your labour broker to provide assistance, or get a private investigator to do some digging and gather the information you require.

Rather do this sooner than later. The most difficult part here is that you have to accept that something untoward has occurred, and that you now have to act on it.
You did not say which part of SA your are in. The longer you prolong this the higher the loses, and the more aggravated you will become, which will cause you to act irrationally and do be precedurely incorrect causing even more losses.

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## Citizen X

> No, I haven't come across any leading case of any mitigating circumstance that can successfully prevent or delay the ultimate sanction of theft.


Actually, I have. The position regarding 'petty theft,' is somewhat muddled by two contradictory judgments regarding the very same employer Shoprite Checkers. One is known as the Zondo Judgment and the other is called the Davis Judgment.

Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 12 BLLR 1211 (LAC) and Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 9 BLLR 838 (LAC).

Zondo judgment


Davies Judgment

Please take some time to read both judgments, they are not lengthy. This is another conversation to be had.

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## sterne.law@gmail.com

You should see Edcon v Reddy.

The SCA has determined that the employer *must* prove and establish the break down in trust. You can no longer presume the trust is broken.

The judgment was applied in a case where the commissioner agreed that the employee had committed overtime and time clock fraud - but because the employer failed to lead evidence showing the breakdown of trust, the dismissal was unfair.
He was re-instated.

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## Citizen X

> You should see





> Edcon v Reddy.
> 
> The SCA has determined that the employer *must* prove and establish the break down in trust. You can no longer presume the trust is broken.
> 
> The judgment was applied in a case where the commissioner agreed that the employee had committedovertime and time clock fraud - but because the employer failed to lead evidence showing the breakdown of trust, the dismissal was unfair.
> He was re-instated.




I just read the judgment. So, it's insufficient for an initiator to simply say that the trust relationship is irretrievably broken down. The initiator must lead evidence to this effect. The initiator must also convince the chairperson that dismissal is an appropriate sanction. Lesson: If big companies such as Edcon and Shoprite Checkers(based on the case-law) can get it wrong, with senior counsel guiding them, how much more so for the small business. From experience, I've found that many small and medium business often seek advice when it's way too late. Many small and medium businesses hold labour law in low regard, not realizing that this is a specialized area of law.

Paragraph 2 of this judgment is damning 




> Unhappy with the award Edcon launched review proceedings in the Labour Court (LC) in terms of s 145 of the Labour Relations Act 66 of 1995 (LRA) with a view to setting it aside. The LC (Pillay J) *declined to set the award aside*. *Undaunted**,* *Edcon* appealed to the Labour Appeal Court (LAC), with that court’s leave, but that effort again came unstuck when the LAC dismissed the appeal, concluding that the award was unassailable. The judgment of the LAC has been reported – _Edcon__ Ltd v Pillemer NO & others_ (2008) 29 ILJ 614 (LAC). Edcon’s appeal is before us with special leave of this court.




This is also not a lengthy judgment, please take some time to read it at the link below:
*Edcon Ltd v Pillemer NO and Others (191/08) [2009] ZASCA 135; [2010] 1 BLLR 1 (SCA); (2009) 30 ILJ 2642 (SCA) (5 October 2009)*

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## Entropy Group

No one is saying anything about the injured party, i.e. the owner of the cheap cellphone. If this is your client one might need to consider the client's opinion, in the light of future business with said client. If the phone has been returned to the original owner, with an apology from the thief, and the cheap phone owner chooses to accept this as sufficient, then:

1) based on the admission of guilt, place a final written warning on file;
2) have a heart-to-heart with the offender and explain the consequences of such foolish action and that desperation does not need to lead to incarceration;
3) postpone the permanence option by six months to establish remorse and rehabilitation;
4) charge the supervisor with misconduct and finalise with a verbal warning (the supervisor is probably not the best trained middle management person you've ever known and here is an opportunity to teach on the value of solidarity with subordinates versus loyalty to company, all of which has a direct influence on one's future in the organization).

The bottom line is, show you're human, make a difference in these two lives and turn potential outcasts into star employees. 

This is not simply a devil's advocate argument, this is what I think is inherently wrong in the workplace is South Africa. Labour legislation should be seen as a departure point. When this becomes your destination, a workplace is created where kindness, friendliness, aspiration and belonging is replaced with get-as-much-as-you-can and watch-your-ass.

Stealing from your employer is wrong, whether you get caught or not. Stealing only happens when it is a "mine and theirs" dichotomy. If we're all on the same side it's all "mine" and I maintain it, take good care of it and use it wisely (whatever "it" might be).

I'm sure you get where I'm going with this!!

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## sterne.law@gmail.com

In terms of proving your case, do not forget that the test for labour matters is not as high as that for criminal matters.

On your brief summary - this is not petty theft, it is a purposeful and deliberate attempt to steal.
It seems that while you may not have direct proof, ex footage of a person taking something, you have enough circumstantial evidence.
As an example:

I have proof that I left R 10 000 on the table in my office.
On my return it is gone.
Camera footage shows that only Jack the Ripper entered my office.
- The only logical conclusion based on the undisputed facts is that JtR took the money

Let us say that JtR will claim maybe I pretended the money was gone -
But my evidence shows that on the day the money went missing - that evening JtR was seen splashing out at the fanciest restaurant and the next day came to work with a new Iphone and genuine name brand watch.

The facts established lead to the conclusion that JtR took the cash. Whilst no direct evidence, there is enough circumstantial evidence to get a guilty outcome.

Employers often worry that they cannot prove a certain fact. Let us say we know the employee went to the bar and lunch and paid for 6 beers. We want to charge for drinking on duty.
As the employer we think: BUT I cannot prove he drank the beers.
Our evidence is the bill and that he parked the car skew and bumped the wall when he returned.

That evidence meets our onus - it is the *employee's job* to prove he never drank those beers, not our job.

In terms of sanction -
The theft was deliberate and devious.
An employer can not be expected to watch over the back of their employee.
The employee's position, manner of misconduct all point to a breakdown of trust.
Dismissal seems appropriate.

Edcon v Reddy does not mean we cannot dismiss people. On the contrary it merely means you must set out why the trust is broken.
Edcon trust stemmed from the deceit of covering up a car accident and repairing it so company would not know. It is unlikely that the employee would do so again

The question to ask is: -was this an aberration or is it an offence that would probably not happen again. 

Example - If an employee committed time clock fraud - it is arguable that the relationship could still continue - the company will need to show that it cannot (it was frequent, employee works independently etc)

Despite Edcon, it is unlikely that theft will warrant a sanction short of dismissal

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