Dismissal for theft at Xmas party not held on business premises

[BuyNoEvil]

Hi

Our Xmas party for staff was recently held at the residence of the Director. Liquor was provided to all staff without any restrictions on use. Two staff members, according to witness reports, removed unopened liquor from the premises. They at the time hid this fact. The one took a towel belonging to someone else in which to wrap the liquor in. The towel was also not returned.

We have suspended both subject tot he outcome of a disciplinary hearing. Our Disciplinary Code clearly lists theft a a dismissable offence.

My question is whether the Code can be applied to the above situation, where the theft took place at premises other than the business premises and outside of normal working hours. Obviously we will argue at the hearing that the trust relationship between employer and employee has been irreparably harmed.

Some advice will be greatly appreciated.

[Dave A]

If the evidence of theft is strong, and proper procedure is followed, getting to a guilty verdict isn't going to be the issue. It's going to be the fair and appropriate sanction that'll be the battleground.

Fair chance the argument in mitigation will be that their judgement was impaired due to intoxicating liquor supplied by the company.

If there is no history of misconduct, I suggest shoot for a final written warning and restitution of the goods - and everyone will be a winner.
(Well, sort of).

[BuyNoEvil]

Thanks for the comment. Problem here is that the one employee is a security guard with keys, alarm codes etc. to the business premises.

The other is a cleaner who is often alone on the premises before and after other staff have left.

Another question, if they plead guilty can the chair go straight to review of records and mitigating factors or must all witness testimony still be heard?

[roryf]

I know what would happen if I was the chairman....I would take my chances at the CCMA if it got that far.I do not have any time for dishonest people.

I would also charge criminally for theft.Hey,you might even get a resignation once the notice to attend a disciplinary hearing is given.

Hope you have a reliable witness!

[Dave A]

Thanks for the comment. Problem here is that the one employee is a security guard with keys, alarm codes etc. to the business premises.
The other is a cleaner who is often alone on the premises before and after other staff have left

Life sure can be a craps shoot at times.

Either you'll have an employee who will appreciate the break and give you some loyalty, or you've just exposed the tip of the iceberg. Either way, careful monitoring is warranted for the next little bit - and changing the locks if they're dismissed/resign.

I wouldn't be the least bit surprised if the employees concerned view left-over party booze differently to the assets of the company. (That may come up too).

Another question, if they plead guilty can the chair go straight to review of records and mitigating factors or must all witness testimony still be heard?

Funny you mention that. I was an independant chairperson just last week where the accused pleaded guilty. As it turned out, I did still have to hear much of the evidence that would have been heard without the guilty plea to understand the severity of the offence and the sanction asked for.

[BuyNoEvil]

Thank you guys. Much appreciated!

[BuyNoEvil]

Polishes the big boot.....here comes Naas

[gordo]

I have to be honest. ive seen that many times in my company. I dont think that just because they stole a little booze, that they will be willing to risk stealing from the company. I think that they were just having a good time and wanted to go party some more but all the bottle stores were closed,or they didnt have money, and they saw some booze for the taking so they didnt think it was gonna harm any1.

but i dont know these guys personally, so i guess my judgement is possibly not very accurate. though if it was me, i would give them a warning and let it go.

[BusFact]

I'm going to play devils advocate here:

So, they took some liquor that was available for them to consume. Now, just because they took it home in their hands instead of in their stomachs, its suddenly theft. I think you'd struggle with a theft charge and even in being able to fire them. If the company booze had been left behind and not "stolen", then what would have happened to it? Would the director have kept it? Isn't that a similar offence?

I'm pushing the limits here I know, just trying to show you that you have a grey area.

I also agree with an above comment about it being a stretch from taking home party booze (ignore the towel for now) to stealing company property on site.

I wouldn't even go the disciplinary route (unless you feel the towel is an issue), I'd rather make the company policy clear to all so that it doesn't happen again next year. At most I'd hand out a tongue lashing, but that would be more for effect and to show that its not open house on anything.

[Citizen X]

The plus factors:-
1. Each individual case is considered on it's own merits,
2. There is indeed a breach in the employee/employer trust relationship;
3. It is theft from a reasoanble man's perspective;
4. You have a disciplinary code;
5. Might I suggest that you include the charge of 'bringing the company into disrepute', employees are expected to conduct themselves appropriately even at Christmas parties
6.You could have also phrased the charge as "unauthorised possession of company goods", years ago I worked for teh shoprite superstore division as a manager, we only provided cans of beer at christmas parties, and we opened it before giving it out, we also made it clear to employees that it would be considered an offence if they removed sealed beer cans from the party itself
7. The benchmark measure for anyone considering whether to impose dismissal as a sanction or punishment for the transgression or offence still remains Schedule 8, code of good practice of The Labour Relations Act 66 of 1995 which provides:
7. Guidelines in cases of dismissal for misconduct
Any person who is determining whether a dismissal for misconduct is unfair should consider-
(a) whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not-
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of the rule or standard