The employee referred the matter to the CCMA where I cleaned up the arguments and added some contractual – and common law as well as case law, and I managed to convince a CCMA commissioner of same as the dismissal was found to be fair.

Now often people would tell me that their admin person or receptionist does the same thing and we should charge him/ her. I always pose the same question – have you given them enough work to keep busy with so that they do not have time to be on their phone, play a game or watch videos and more often than not they tell me that they have not. If you do not have enough work to keep them busy, that becomes another matter to investigate, however charges of idleness/ loafing and theft of company time and resources will not be successful.

Starting with the definition of theft – “Being in the possession of company and or client and or a fellow colleague’s property with the intention to permanently deprive the affected party of the item”. The emphasis to keep in mind with this definition is “intention to permanently deprive” and this simply put means taking something without the intention to give it back. We do not steal a person’s pen, we simply borrow it and sometimes forget to give it back, we steal out of somebody purse or bag and then have no intention to borrow it but rather to keep it for ourselves and never return.

This being said, every time I do a disciplinary hearing for somebody charged for theft (money, equipment, tools, food – something tangible) they claim the value is not significant enough to dismiss, and every time I use the following case law in my outcome as well as at the CCMA.

Per Pillay v C G Smith Sugar Ltd (1985) 6 ILJ 530 (IC) it is said that “the court would not set the precedent that an employee is entitled to steal once from his employer before he is dismissed. That is obviously correct but only if the employer can from the nature of the deed and the circumstances under which it was committed conclude that he cannot longer entrust his property and his affairs to that employee.  The commercial rationale for the decision to dismiss is not whether the employee’s deed can in law be classified as theft but whether a thieving propensity, which caused him to mistrust the employee, can be inferred.  The gardener who, contrary to instructions, plucks a ripe peach and eats it is as guilty of theft as the gardener who steels his master’s gold watch. The reasonable man in the street would regard the one as a thief who can no longer be trusted but not the other.”

It has been trialed and tested and the CCMA and Courts agree – theft is theft no matter the value as the issue is not so much the fact that you stole, but rather the dishonest/ thieving propensity. The employees then indicate that they are truly remorseful and it will not repeat, however, the following is just a couple (of millions) of case law where the CCMA and Courts agree that theft/ dishonesty charges are seen as “deal breakers” and accordingly if found guilty, can nothing save you from being dismissed due to the trust relationship being tarnished beyond repair.

In the Freshmark (PTY) Ltd // SA Commercial Catering & Allied Workers Union & Others: “like any other form of dishonest misconduct, if the particular context it has an impact on the employment relationship that is greater than it might have been had circumstances been different, the guilty employee can hardly claim it is unfair for him to have to bear those consequences. Misconduct carries with it consequences and if one such consequence is the actual and reasonable destruction of trust then dismissal is the appropriate sanction.”

According to the Labour Relations Act 66 of 1995 (Schedule 8 Item 3(4)) “Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. Whatever the merits of the case for dismissal might be, a dismissal will not be fair if it does not meet the requirements of section 188”

In Toyota SA Motors (Pty) Ltd v Radebe& others, Zondo AJP (as he then was), however, held that “certain acts of misconduct such as gross dishonesty warrant dismissal despite the fact that the employee has a long service record with the employer. Although a long period of service of an employee will usually be a mitigating factor where such employee is guilty of misconduct, the point must be made that there are certain acts of misconduct which are of such serious nature that no length of service can save an employee who is guilty of them from dismissal. To my mind one such clear act of misconduct is gross dishonesty.”

In Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & others the company had a policy allowing its employees to purchase scrap products from it. The employee did not comply with the specific procedure and dispatched a sealed box containing company property. At para 42 Molahlehi J held as follows: “The presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, like long service and a clean record of discipline are likely to have minimal impact on the sanction to be imposed. In other words, whatever the amount of mitigation, the relationship is unlikely to be restored once dishonesty has been established in particular in a case where the employee shows no remorse. The reason for this is that there is a high premium placed on honesty because conduct that involves corruption by the employee damages the trust relationship which underpins the essence of the employment relationship.”

Considering all the case law and my personal opinion on them, I would like to finish off with the following thoughts:

1. Stealing is stealing and the value does not matter when keeping in mind what the impact is on the trust relationship. An employer must be able to trust his/ her employees and the moment where he/ she cannot do so due to the employees actions, the possibility of a future working relationship becomes highly improbable and it is then best to dismiss the employee instead of hoping and wishing the relationship will recover as I have never experienced it otherwise.

2. In my mind do acts of negligence, late coming, absenteeism etc often have little impact on the trust relationship, because mistakes we can fix, however, with dishonesty and theft specifically, we cannot, as it shows who you are as a person/ your dishonest propensity and character.

3. An employee has a duty to come to work and give his/ her employer 100% (or at least 90%) of their effort, time and devotion during working hours, and in exchange the employer will pay him/ her 100% of the agreed upon wage. This is the basis of contractual – and common law. Should an employee not give 100% (or at least 90%) due to them being distracted by their phones, they are not only in breach of their contractual – and common law duties, but they are also taking something from their employer which they are not entitled to – very similar to stealing a wallet as you are taking something you are not entitled to.

4. Should you not have enough work to keep certain employees busy, you can always investigate the possibility of adding duties to that specific person or retrenching them an having their responsibilities and duties be absorbed by other employees, who might also have capacity to take on other/ additional work to prevent them from doing the same thing. I know this seems harsh but most of my clients would be happy to save on labour costs in these tough economic times, especially if that salary is being paid to somebody doing very little.

5. Dishonesty is seen in the same light as theft. Acts of omission or telling a half truth is also seen as dishonesty, in my opinion, as it is not the whole truth. An employer has the right to expect their employees to tell them the whole truth and not just the parts that works best in their favour as that is not acting in the best interest of the employer, but rather your own selfish interest.

Should you have experienced anything similar to the above and not sure of whether or how take action, or would like to consult on whether you can take actions or not, please contact us so that we can advise fittingly.