17 October 2024
Theft in the workplace is a serious form of misconduct that places significant strain on a business's profitability and sustainability. To effectively address this problem, employers need a comprehensive strategy that includes preventative measures, detection strategies, and equitable disciplinary actions. In most cases of theft, dismissal as a sanction is appropriate, as the prohibition against theft is widely understood and central to the employment relationship and the employees’ duty to act in good faith and in furtherance of the employer’s interests.
Preventive Measures and Detection Strategies
Firstly, employers should invest in thorough hiring practices to mitigate the risk of internal theft. This includes conducting detailed background checks to uncover any potential issues or previous incidents that could be indicative of future behaviour. Comprehensive reference checks are also essential to validate the information provided by candidates and to gain insights from former employers about the candidate’s past conduct. Additionally, pre-employment screening tests, such as psychological assessments can provide further indications of a candidate’s suitability for the role and their likelihood to adhere to ethical standards. Secondly, establishing and communicating clear policies is crucial for preventing theft. Employers should develop a well-defined code of conduct that explicitly outlines what constitutes theft and the associated consequences for violations. These policies should be clearly communicated to all employees during onboarding and through regular training sessions. Additionally, the use of surveillance and monitoring can serve as a deterrent to potential theft and aid in evidence collection if theft occurs. Security cameras should be strategically placed in sensitive areas where theft is more likely to occur. It is important that employees are aware of the presence of these cameras, as this knowledge can act as a deterrent.
Dealing with Incidents of Theft
Theft in the workplace, despite best efforts to prevent it, is unfortunately an inevitable reality for many employers. When such incidents occur, employers are faced with a difficult decision: whether to involve the police or to proceed with an internal disciplinary hearing.
Deciding whether to involve the police requires careful consideration. While the police can pursue criminal charges and potentially arrest the employee, this may prevent the employee from participating in an internal hearing. If the employee is incarcerated, holding the enquiry in their absence would be deemed unfair. Therefore conducting the disciplinary procedure first is usually more appropriate to ensure procedural fairness is observed. However, in urgent cases which involve dangerous items such as weapons or drugs, it is important to notify the police immediately and address the disciplinary process afterward. Employers often act impulsively and proceed with immediate dismissal without following proper procedures. If the dismissed employee challenges the decision at the CCMA or Bargaining Council, the employer is likely to lose the case, not due to a lack of evidence, but because of procedural errors. A thorough investigation is essential, and rushing to conclusions can result in unfavourable outcomes.
Case Study
In Shoprite Checkers (Pty) Ltd v CCMA & Others, the Labour Appeal Court (LAC) held that theft should be treated like other forms of misconduct, taking into account mitigating factors such as the employee's long service, clean disciplinary record, and the low value of the stolen items. Although the Supreme Court of Appeal (SCA) later overturned the LAC's decision on technical grounds, the LAC's findings on the merits were upheld. The employee was ultimately reinstated with a severe written warning but without full retrospective effect.
The case underscores that not all dishonesty justifies dismissal. Employers defending a dismissal for theft must prove the presence of all legal elements of theft—unauthorized possession or removal of the employer’s property with intent to steal—and show that the theft caused a breakdown in trust, making continued employment intolerable. Additionally, employers must demonstrate that mitigating factors do not diminish the seriousness of the situation and that employees have been clearly warned about the consequences of any form of dishonesty, regardless of the value involved.
In conclusion, when theft occurs, it’s crucial to conduct an internal disciplinary enquiry, especially to maintain procedural fairness. Rushing to dismissal without following proper procedures can lead to disputes. By carefully managing investigations and maintaining procedural integrity, employers can address theft while protecting their workplace environment.
Contact Invictus for guidance and assistance in handling theft in the workplace. Get in touch with our office at 086 173 7263 or email us at admin@invictusgroup.co.za
