Theft in the workplace is a gross transgression. It goes to the root of the employment relationship, which binds the employer and employee to act in good faith. When the trust relationship between the employer and employee is damaged, it could be unsalvageable, thus instituting the well-known sanction of summary dismissal for theft.

Overview

Employers often react to the distress of discovering theft by immediately dismissing an employee without following a fair procedure. Summary dismissal without a disciplinary hearing process could lead to the employee referring a dispute to the CCMA for unfair dismissal based on the challenged procedural fairness.

When the CCMA has to look at unfair dismissal disputes, a decision is made on the substantive and procedural fairness of the case. According to Schedule 8 of the Labour Relations Act, an employee may only be dismissed based on the employee's conduct or capacity or the employer's operational requirements. In addition, a dismissal is unfair if it is not for a fair reason and in accordance with a fair procedure. Therefore, despite concrete evidence that an employee committed an act of theft, an employer is still required to follow a fair procedure before dismissing an employee.

A disciplinary code is crucial to ensure that workplace rules are clear to employees and employers. Such a policy must make it possible for an employer to proceed directly to a disciplinary hearing in the case of serious misconduct. The disciplinary hearing must follow a set standard and allow the accused employee to state their case.

An employer must be able to prove that:

the employee took goods or property that did not belong to him/her,the employee knew that permission was required to take the goods or    property and did not have the necessary permission to do so,that by taking the goods or property, the employee deprived the employer of the use or benefit of the good or property, andthe employee had no intention of returning the goods or property to the employer.

Conclusion

It is also essential to remember that when an employee is dismissed, the charge on which the guilty verdict leads to the sanction of dismissal is correctly formulated. Therefore, employers should also consider whether progressive discipline, such as a final warning, may not be more appropriate to the circumstances.

Contact an attorney at SchoemanLaw for your labour law needs by visiting our website at www.schoemanlaw.co.za.