Dismissal for theft

[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.

[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 The principal is the same, only the shambok has been replaced by the SAPS and Correctional Services.

[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?

[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.

[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 )

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.

[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.

[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.

[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.

[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.

[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.