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Thread: Dismissal for theft

  1. #21
    Platinum Member sterne.law@gmail.com's Avatar
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    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.
    Last edited by sterne.law@gmail.com; 11-Dec-09 at 12:17 PM. Reason: grammar
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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  3. #22
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    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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  5. #23
    Site Caretaker Dave A's Avatar
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    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 clientèle 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 , but it's supposed to serve justice and the best interests of the people too )

    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.
    Last edited by Dave A; 12-Dec-09 at 05:50 AM.

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  7. #24
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    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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  9. #25
    Site Caretaker Dave A's Avatar
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    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.
    Last edited by Dave A; 12-Dec-09 at 06:06 AM.

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  11. #26
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    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.
    Last edited by BBBEE_CompSpec; 12-Dec-09 at 09:14 AM. Reason: Grammatical Error

  12. #27
    Site Caretaker Dave A's Avatar
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    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.

  13. #28
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    I knew I had read it somewhere. Glad I could clear up the matter.

  14. #29
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    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
    Last edited by manhav; 21-Jan-10 at 09:56 AM.

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  16. #30
    Platinum Member desA's Avatar
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    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.
    In search of South African Technology Nuggets(R), for sale & trading in South East Asia.

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