If you ever thought that the law is explicit that dismissal is justified in instances of theft, you have to think twice. Employers that have not been consistent in dealing with theft cases might just have to welcome the thief back into the fold of employment.
The Labour Court has been quite clear in its condemnation of theft, irrespective of the value of the item being stolen. The basis of this approach has in one case been stated as follows: “It is one of the fundamentals of the employment relationship that an employer should be able to place trust in an employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the relationship and is destructive of it.”
There are certain situations pertaining to theft where an employer might consider making an exception due to the particular circumstances of the case. The employee might, for example, have been a loyal employee for many years and might be genuinely remorseful. The employer might feel that the employee deserves another chance. But what happens if another employee steals and expects to remain in employment, due to the leniency demonstrated towards the first employee - what is a legitimate basis to distinguish between two cases involving theft?
Consistency and flexibility
It is a well-established principle that an employer has to be consistent in the application of discipline. However, the employer also has an obligation to consider mitigating circumstances before dismissing an employee. The Labour Court has on occasion accepted that some inconsistency is the price to be paid for flexibility. This means that allowance can be made for an employer exercising discretion in each individual case. The Court has also accepted that the CCMA or Labour Court should be slow to interfere with the discretion exercised by the employer. But how much allowance is made for the employer to distinguish, or even make a mistake, when not dismissing one employee but dismissing the other?
The Labour Court has on another occasion found that where two employees have committed the same wrong and there is nothing else to distinguish between them, they ought generally to be treated in the same way. Employers are not necessarily legal experts and some grounds that an employer might use to distinguish two matters can be regarded as invalid or irrelevant.
Exercising discretion becomes dangerous territory, particularly when one looks at some recent CCMA decisions where employees were been reinstated, even in situations where it was common cause that they had stolen. The reason for reinstatement in these cases was simply that the CCMA, perhaps correctly, differed from the employer about the reason for giving one dishonest employee a final warning and dismissing another.
Another vexing question is whether the employer may pardon an employee who participated in theft, but who has decided to come clean and assist the employer by providing evidence against his fellow transgressors in disciplinary hearings – much the same as the state does with criminals that become state witnesses. It might seem like a reasonable proposition to assist the whistle blower by keeping him in his job, but this is also a minefield.
In view of the above, we believe that it is risky to distinguish between theft cases. It must be a clearly recorded and communicated policy that any form of theft is likely to lead to summary dismissal. This policy must be communicated to any external chairpersons and implemented consistently, except where there are compelling reasons not to do so.
Author: Jan Truter of Labourwise.
Labourwise is an on-line labour relations service aimed at SMMEs to assist entrepreneurs to implement effective labour relations in small businesses. They can be contacted via www.labourwise.co.za or email@example.com