Theft in the workplace is a serious misconduct that places additional pressure on a business in terms of profitability and sustainability. In Central News Agency (Pty) Ltd v CCAWUSA & Another, 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.
What is a dismissal?
A dismissal is when a contract of employment between an employer and an employee is terminated by the employer with or without notice to the employee. This is regulated by s185 (a) of the Labour Relations Act (LRA).
South African law requires that all dismissals must be fair. In Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others, it was held that a dismissal will only be fair if it is procedurally and substantively fair. Procedural fairness means that a fair and proper step-by-step process was followed. Substantive fairness means that there is a just, fair and equitable reason for an employer to dismiss an employee. Misconduct is one of the grounds on which an employee can be dismissed.
What constitutes misconduct?
It is when an employee disregards the workplace rules, whether intentionally, or negligently. Not all misconduct will justify the sanction of dismissal. It will differ from case to case.
What is substantive fairness in dismissals?
Substantive fairness means that there is a just, fair and equitable reason for an employer to dismiss an employee. This is a subjective test. The guidelines provided by item 7 of the Code of Good Practice are aimed at establishing substantive fairness and in terms of Schedule 8, proper procedures need to be followed. In determining the seriousness of the misconduct, the following factors must be considered:
- Whether or not the employee breached a rule or standard responsible for regulating conduct in the workplace;
- Whether or not the rule or standard was reasonable;
- Whether or not the employee was aware or could reasonably be expected to know of the rule or standard;
- Whether or not the employer consistently applies the rule or standard;
- Is dismissal an appropriate penalty for breaching said rule or standard?
What is procedural fairness in dismissals?
The employer should follow a fair and proper procedure before dismissing an employee, even if the dismissal is substantively fair. Procedural fairness refers to a disciplinary inquiry that has to be held to allow an employee to state their case. This requirement stems from the audi alteram partem rule, which means that each party should have the opportunity to voice their case before a ruling is made.
Employers must follow the guidelines in “The Code of Good Practice – Fair Procedure”:
- The employer needs to first conduct an investigation (formal or informal) to determine whether or not there are grounds for dismissal.
- Disciplinary actions taken against a union representative or an employee in a position of power in a trade union should not commence without first notifying the trade union.
- If dismissal occurs, employees have to be notified of why they were dismissed (e.g., being intoxicated at work) and reminded of their rights to proceed to the CCMA or relevant court with jurisdiction.
- In exceedingly rare circumstances, employers may not be expected to comply with guidelines and can forego pre-dismissal guidelines.
Rights and obligations in following the proper procedure?
- Employer duties:
- Conduct an investigation
- Notify employees of allegations brought forth
- Notify trade union
- Employee rights
- Notified of all allegations brought forth
- Representation at hearing
- Rebut allegations
- Notified of the outcome of the hearing
- Appeal the outcome
It is suggested to make a checklist to ensure all steps are followed when conducting a disciplinary process.
When an employer is faced with theft by an employee in the workplace, they must ensure that a proper and fair process is followed before the dismissal. The employer must be consistent in their approach, and ensure that the sanction imposed is appropriate. The law does not allow an employer to adopt a zero-tolerance approach for all infractions, regardless of the appropriateness or proportionality of the offence.