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EOHCB: Misappropriation in the Workplace

It is a known fact that as economic hardships increase people are looking at other ways and means to supplement their declining income. One such method is unethical behaviour in the form of employee theft.

Theft in the workplace is a serious misconduct that places additional pressure on a business in terms of profitability and sustainability. Almost 80% of cases referred to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) or the Bargaining Council are due to unfair dismissal, of which most cases are related to misconduct that led to dismissal.

An employer cannot dismiss an employee under any circumstances, without holding a disciplinary hearing to ensure that a fair procedure is followed and that there is substantive reason (proof) for the employee to be dismissed in terms of misconduct.

Theft is defined as the action or crime of stealing – taking goods belonging to another, without permission and permanently depriving the owner (lawful possessor) of its use and possession. In charging an employee with theft, an employer must be able to prove on a balance of probability that:

  • The employee took goods which didn’t belong to him/her;

  • The employee knew that he/she required permission to take such goods and didn’t have such permission;

  • By taking the goods, the employee deprived the employer of its use and possession; and

  • The employee didn’t intend to return the goods to the employer.

A disciplinary code is vital to ensure that there are clear rules in the workplace, with appropriate sanctions, for employees to follow. When these rules are broken the employer can apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing.

In most cases of theft, dismissal as a sanction is appropriate as the rule against theft is not only well known, but goes to the root of the employment relationship that binds an employee to act in good faith and to further the employer’s interests. This misconduct can negatively impact the employment relationship, rendering trust irreconcilable.

A dismissal will be rendered unfair if the employer failed to follow fair procedure before such dismissal, no matter how compelling the reason for dismissal may have been.

Theft is viewed by the courts as a serious disciplinary offence and normally justifies dismissal at first instance regardless of the value of the property involved. It will not avail the employee the length of service which he/she has served, the absence of prior warnings, whether the property stolen was subsequently returned or even if the employee derived no direct benefit from such theft. The sanction of summary dismissal for theft, as such, is seen in most employers’ disciplinary codes in the workplace.

An employer whose employee has been found guilty of theft must take note of all the circumstances surrounding the theft. An employer must ensure that a proper and fair process is followed prior to the dismissal. The employer must be consistent in its approach, but must still ensure that the sanction imposed is appropriate when considering all of the circumstances.

When the employer has insufficient proof to charge the employee with theft, the employer can resort to charging the employee with related alternative offences, provided that these offences are set out in the disciplinary code. These offences include “unlawful possession of property”, “unlawful removal of property”, “misappropriation”, “dishonest practices” or even “fraud”, depending on each case’s merits.

In general arbitration awards in favour of the employee are due to the lack of following correct procedure on the employer’s behalf. We strongly advise employers to implement clear rules in the workplace and follow correct procedures with regards to all labour matters, especially dismissal and general discipline in the workplace, by acting pro-actively.

We encourage our members to contact their EOHCB representatives to assist them in this regard to implement the correct procedure, process and facilitation thereof.

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