Dealing with Theft in the Workplace and the factors to raise when presenting an Employer’s Case at the CCMA:

When an employer is faced with an employee who is suspected of committing theft in the workplace and decides to take disciplinary action, the employer may dismiss the employee.

However, the dismissed employee may challenge the dismissal and refer the matter to the CCMA for arbitration.

To strengthen their case during the CCMA arbitration, employers should consider the following approach:

Proving the Misconduct:

• Present evidence that the employee was aware that theft is prohibited and is a dismissible offense. Theft is viewed as common-law misconduct, but we suggest that the employer, still, in its code of conduct have a clear rule relating to theft and / or unauthorised possession of company property.
• When the employee is charged, it is recommended that the employee is charged with theft and unauthorised possession in the alternative, should the circumstances allow it.
• Highlight the prevalence of shrinkage issues in the industry, emphasizing that the issue is not just about the monetary value of the stolen item but also about the operational requirements of the employer.
• Demonstrate consistent application of the rule against theft in the workplace.

Appropriateness of Dismissal:

• Argue the seriousness of the misconduct and its impact on the employment relationship.
• Present evidence showing the harm caused by the employee’s conduct and how it damaged or destroyed the trust relationship with the employer.
• Address any mitigating factors presented by the employee and explain why they are outweighed by other factors, justifying the dismissal.

Employment Record:

• Consider the employee’s service record and any prior disciplinary history when presenting the case.
• Explain how an employee with long service should have been aware of the employer’s expectations and policies regarding theft.

Practical Considerations:

• Demonstrate why it would not be reasonably practicable to reinstate or re-employ the employee, citing reasons such as the position being already filled, or the breach of trust making continued employment unviable.

Honesty and Admissions:

• Emphasize the importance of honesty during the proceedings and argue that the failure to admit the misconduct compounds the dishonesty and affects future employment.

It’s important to note that each case is unique, and there are no guaranteed outcomes at the CCMA.

However, presenting a well-prepared case with relevant evidence and clear reasoning can increase the likelihood of a favorable outcome for the employer.

Legal advice and assistance from experienced labor law practitioners can be valuable in navigating CCMA proceedings effectively.