Dismissal for theft

[Dave A]

If an employee is found guilty of theft, is there any valid argument in mitigation against instituting immediate dismissal without notice?

[BBBEE_CompSpec]

If you caught the person red handed, why did you not report the matter to the police to start with? What was stolen and to what value? You are expected, by law, to report the case. If the person was not caught red handed but was suspected of theft, how did they find the person guilty? What mitigating circumstances can there be if a person was caught for or even admitted to theft?

Theft is theft. The LRA is perfectly clear as far as theft or fraud is concerned. It is a first offense dismissal. Summary dismissal. There is no excuse for theft, unless you really pay your employees very badly.

[Dave A]

It's a cheap cellphone. The guilty staff member volunteered an AOG once it was pointed out that the site had security cameras and we would be able to identify which staff member had serviced the affected area.

Next problem. How about accessories? This staff member's supervisor was informed by the staff member of the theft once they left the premises - hence knew about the theft, did nothing and actually tried to cover for the guilty party by attempting to provide an alibi when I first informed staff there had been a complaint (before I had started my investigation).

[BBBEE_CompSpec]

Let me attempt to answer you with an amicable answer. I have thought about it for two hours now, ahead of my first chemo today.

You are going to have to dismiss two employees to keep the precedent in place. Both are the thief.

There is no such thing as a cheap cell phone. Whether you steal R5 or R1000, theft is theft. You have a series of misconducts. Dishonesty, deliberate psychological damage to the person who became the victim, mistrust or deliberate damage to the owner of the business or the employer, if one person is covering for the accused then all are covering for misconducts taking place in your business. Who do you trust and who don't you.

The Whistle Blowers Act protects the supervisor and yet he chose to still pull the wool over your eyes. If they stole from a fellow employee good and well. The damage is contained. If they stole from a client you have immense damage and have to put damage control into place. Damage like this could close down a business.

Not only did the supervisor cover up the story he was prepared to go the extra mile to protect the employee concerned, not taking into account the very hands that feed him and his family. His future is gone due to an act of good faith toward the thief.

Both are guilty of a very heinous crime. Both are guilty of a very serious fine.

Let me give you an example that I followed once when a client asked me to sit the shair in a theft case. She wanted to keep one member and dismiss the other.

After explaining to her that I had to either dismiss both or keep both she asked me to go ahead and she would consider my findings.

The members had taken a sealed magazine off the shelf in a general dealer and read it in the toilets. They had been caught on camera.

They then returned the book to the shelf unsealed.

The manager of the dealer approached them and requested an explanation. They told them he was imagining things and that they had done nothing wrong.

The book was removed from the shelf and not paid for - incident - theft. The seal was broken - they knew what they were doing - incident - gross insolence or dishonesty. They read a book that should have been paid for and returned it to the shelf - incident - gross insolence. They lied to the manager when asked (and pointed out on camera) - incident - Gross Dishonesty. I have four serious offenses that carry first offense dismissals. Only one is summary dismissal. The theft case,

Do I involve the police? Yes. It is legislative. The Anti Theft and Corruptions Act.

I listen to both sides of the story. I decide on three forms of punishment. They have a choice. 1. I dismiss both of the employees based on, now, there own admittence to the taking of the magazine. They admit they knew they were doing wrong. 2. I dismiss them but suspend the sentence, so to speak, for 12 months. This I learnt from Prof. Barney Jordaan. He is the HOD of the Faculty of Labour Law at UCT. As they are already dismissed, if they do not convince me, after the 12 month period is up, that they are willing to change, they leave without a further hearing. If there is another incident wihin the 12 period, they walk and don't come back to work. 3. they each pay a R500-00 fine and get a Final Written Warning that will remain on their records for the full 12 months.

They chose no 3. Even though it may have been the most expensive magazine they had ever bought, they kept their jobs. Not a very orthodox sentence and can only be legal if the employees agree to it, without coercion, but it works. The company has not had another incident since then. That was three years ago.

If you have a good worker and a bad worker involved you will find yourself at the cross roads as I did. There is no excuse for theft and you have the right to dismiss both for the incident. You can still lose at CCMA if you dismiss one and keep the other. Sentence must be the same. In SA we don't use the word accomplice. Both are guilty, equally, of the same crime.

The decision at the end of the day is yours. You can keep or change the precedent. Don't give in to your feelings, follow the letter of the law. Especially this time of the year. They should have thought about their families before the deed was done.

[Dave A]

Thanks Shaun. Some really good food for thought there. I'd also arrived at the conclusion that both employees will have to be treated the same, albeit by rather more complex reasoning.

Just to add some more context -

We have always dismissed for theft without hesitation in the past, but your point on poor pay is relevant. This is a part-time employee who seemed set for permanent employment in the new year bar mishap. However, there is little doubt she is under financial duress at this point. She came clean with extraordinary haste once it became clear that the net was closing in, and the confession was frank, complete and remorseful.

ASIDE: What the heck is it about cellphones?

I've had one suggestion that mercy (properly presented) might lead to better loyalty. However, on the flip side I have a concern about the message this sends out, particularly to other staff members and clients.

I find the involvement of the supervisor deeply disturbing. I'm afraid uBuntu can go too far.

Your suspended sentence option might provide a middle road...

[wynn]

Report the theft to the police, it is required. It will also prevent the issue backfiring on you 6 months from now if there is another instance.

If for some reason, in the future, you wish to get rid of one or both, a signed confession with resignation letter is worth it's weight in gold if you offer to dismiss the charges.
You get to avoid any CCMA crap if you decide to get rid of the perpetrators.

leopards seldom become tigers.

[sterne.law@gmail.com]

Report the theft to the police, it is required. It will also prevent the issue backfiring on you 6 months from now if there is another instance.

If for some reason, in the future, you wish to get rid of one or both, a signed confession with resignation letter is worth it's weight in gold if you offer to dismiss the charges.
You get to avoid any CCMA crap if you decide to get rid of the perpetrators.

leopards seldom become tigers.

Hello Dave,
I am just on my way out, so will reply later. In the mean time I have attached a piece on Dishonesty which should help.

[Dave A]

Very useful document, thanks Anthony

Three big takeaways for me there:

• The difference between consistency and inflexibility
• Balance of probability vs beyond reasonable doubt
• Aspects relating to polygraph testing

[sterne.law@gmail.com]

Some further and more case specific comment -

The issue of summary dismissal – there is no legislation or code as to when notice in a dismissal instance, is with or without notice. As a rule every dismissal tends to be without notice or summary dismissal. There is a school of thought that dismissing with notice is technically a less serious sanction than summary dismissal and is therefore an extra line of defense when an issue is referred. To be honest I think most employers go for the in for a penny in for a pound and where theft is involved, particularly of company property I doubt if any employer wishes to pay notice.
To mitigating – I think 99% of the time the mitigating circumstances will not alter much as to the sanction. Essentially the key will always be if the trust is broken or not as to if a sanction less than dismissal is appropriate. Although most people will argue, correctly so, that any theft/dishonesty breaks trust, the real issue is arguably the nature of the job. A delivery guy who stole a pie from the forecourt shop might be guilty of stealing and yes the question is can you trust him, but he can still arguably do his job without you peering over his shoulder all the time, whereas if it is the counter sales person who ate the pie that would be different. There is also a case for employees who admit or plead guilty. It would appear that in labour matters pleading guilty does not reduce the sentence unlike a criminal matter, but this is more as a result of the limits on type of sentence in comparison to a criminal court. A criminal matter I could hand down a sentence of 3 years instead of 6 because the defendant pleaded guilty and in mitigating was hungry. In the labour context my choice is to dismiss or not to dismiss, in a nut shell.
The issue of reporting the matter to the police etc,etc needs further comment. As per my post with attachment, reporting the matter to the police has consequences, especially if an arrest takes place. Furthermore one has to, without condoning theft, ask if it is right to cause so much grief to a person by adding a criminal charge to, in all likelihood their job loss, as a punishment. A person stealing R5000 deserves all the extra punishment, but the theft of a cellphone, which must be punished, one needs to understand some of the reasoning behind it and believe that job loss is a sufficient punishment.
I must disagree with 2 earlier posts in that as far as I am aware there is no legislation or prescription that says a crime must be reported. There is of course a implied responsibility is perhaps the better turn of phrase. However, and this goes to the supervisors role as well, the common law which in turn is read into the employment contract as a term, and is normally further entrenched via the code of conduct in a company, requires an employee to always act in good faith and in the interest of the company. Thus the supervisor has not done this. Even if the supervisor pleads fear or intimidation as the reason he did not talk up, it stands to reason that he cannot perform his task as a level of management of the company and hence best he grab his coat on the way to the door. As to if he is dishonest or a party to the theft the elements of criminal law will apply, of most importance is the intent and did he benefit. BUT there is no doubt that the trust relationship is irretrievably broken down.
To suspended sentence - a warning, particularly if final, is in itself a suspended sentence.
If you feel strongly that dismissal is not the appropriate sanction then you could consider a suspension without pay, which is allowed as an alternative to dismissal.

[wynn]

Sterne.law
My reservation is that if you do not report the theft to the police, if the issue escalates, because you are aware of the circumstances, can you not also be considered an accessory to the theft.
What happens if two weeks later they find your staff member also stole the R5000.oo cash kitty (from say the sale of scrap metal) that was supposed to pay for the staff party.