Theft as Misconduct in South African Workplaces: A Dismissable Offence

Introduction

In South African labour law, theft in the workplace is considered a serious form of misconduct that often results in dismissal. This document explores the nature of workplace theft within the South African context, distinguishes it from unauthorised possession of company property, and examines relevant case law from South African courts.

What Constitutes Theft in the South African Workplace?

Workplace theft in South Africa typically involves the intentional and unauthorised taking, control, or transfer of property belonging to the employer, fellow employees, or clients/customers for personal gain. It can include:

1. Direct theft of cash or goods
2. Misuse of company credit cards or expense accounts
3. Falsifying time sheets or overtime claims
4. Stealing confidential information or trade secrets

Theft vs. Unauthorised Possession of Company Property

While related, theft and unauthorised possession of company property are distinct under South African labour law:

• Theft involves the intention to permanently deprive the owner of their property.
• Unauthorised possession may occur without the intent to steal, such as when an employee takes equipment home without permission but intends to return it.

The key difference lies in the employee’s intention and whether there was an attempt to conceal the action.

Theft as Grounds for Dismissal in South Africa

In South Africa, theft is generally considered a dismissable offence due to:

1. The breach of trust between employer and employee
2. The potential financial loss to the company
3. The risk of encouraging similar behaviour if not dealt with severely

Relevant South African Case Law

Several key cases in South African courts have shaped how theft in the workplace is handled:

1. In Shoprite Checkers (Pty) Ltd v CCMA & others [2008] 9 BLLR 838 (LAC), the Labour Appeal Court held that dismissal was an appropriate sanction for an employee caught on video eating food belonging to the employer without authorisation. The court emphasized the importance of considering the impact on the trust relationship.
2. Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC) established that the value of the stolen item is not always the determining factor in deciding whether dismissal is appropriate. Even theft of items of relatively low value can justify dismissal in the South African context.
3. In Metcash Trading Ltd t/a Metro Cash and Carry v Fobb & another (1998) 19 ILJ 1516 (LAC), the Labour Appeal Court confirmed that dismissal for theft could be fair even if the employee had long service and a clean disciplinary record.
4. Standard Bank SA Ltd v CCMA & Others [1998] 6 BLLR 622 (LC) emphasized that theft destroys the trust relationship essential to the employment relationship in South Africa, generally justifying dismissal even for a first offense.
5. The case of Nedcor Bank Ltd v CCMA & Others [2001] 12 BLLR 1381 (LC) reinforced that in South Africa, an employer need not prove theft beyond reasonable doubt, but only on a balance of probabilities, to justify dismissal.

South African Labour Relations Act Considerations

When dealing with theft in the workplace, South African employers must adhere to the provisions of the Labour Relations Act (LRA). This includes:

1. Conducting a fair disciplinary hearing before dismissal
2. Allowing the employee the right to representation
3. Providing the employee with an opportunity to state their case
4. Ensuring that the sanction of dismissal is appropriate given the circumstances

Additional Considerations in South African Workplace Theft Cases

Use of Polygraph Tests

The use of polygraph tests in workplace theft investigations has been addressed in South African case law:

In SATAWU and others v Khulani Fidelity Security Services (Pty) Ltd [2010] ZALAC 38, the Labour Appeal Court considered a case where employees were removed from their work site and subsequently retrenched after failing quarterly polygraph tests. This practice was implemented in accordance with a collective agreement. The Court held that:

1. The practice did not violate any rights of the employees.
2. The purpose of the polygraph test was not to determine who committed theft, but rather to test the integrity of the employees involved.

This case suggests that polygraph tests, when used appropriately and in accordance with agreed-upon procedures, can be a valid tool in managing workplace integrity issues, including potential theft.

Team Misconduct and Failure to Secure Company Assets

The concept of “team misconduct” has been applied in cases where direct proof of individual theft is difficult to obtain. This was demonstrated in the case of Foschini Group v Maidi and others [2010] ZALAC 5:

1. The entire staff of a store was dismissed for “failure to secure assets of the company” after substantial stock losses were detected.
2. While the employer couldn’t prove direct theft by individuals, the employees were dismissed for gross negligence in failing to take proper care of company property under their control.
3. The stock losses amounted to 28% (1,553 items over 6 months), which was attributed to the employees’ lack of commitment to the company.
4. The Labour Appeal Court accepted the notion of “team misconduct” in this context.

Key points from this case:

• “Team misconduct” can be applied where the liability of a group of workers for collective conduct is indivisible.
• In small stores, if employees cannot prove that stock losses were due to circumstances beyond their control, it may be inferred that they are all culpable.
• Employers may introduce workplace rules as terms of employment contracts which, if breached, can lead to dismissal for shrinkage beyond accepted limits.

This case broadens the understanding of theft-related misconduct in South African workplaces, showing that direct proof of theft is not always necessary for dismissal if there’s a clear failure to safeguard company assets.

Conclusion

In South Africa, theft in the workplace is a serious offence that often leads to dismissal. While each case must be judged on its own merits, the South African courts have consistently upheld that theft fundamentally undermines the employment relationship. Employers must ensure fair procedures, as outlined in the LRA, are followed in investigating and addressing suspected theft, but when proven, dismissal is generally considered an appropriate sanction under South African labour law.

The cases of SATAWU v Khulani Fidelity Security Services and Foschini Group v Maidi further illustrate the complexity of theft-related issues in South African workplaces. They demonstrate that employers may use various tools, including polygraph tests and the concept of team misconduct, to address theft and asset protection concerns. However, these methods must be applied fairly and in accordance with agreed-upon procedures to be considered valid under South African labour law.