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DISMISSAL FOR PETTY THEFT: WHEN IS IT JUSTIFIED?
When can you summarily dismiss a dishonest employee? Our law holds that it is "one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee… A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it."
Accordingly, as a recent Labour Court decision illustrates, offences such as fraud or theft are regarded as being generally "so destructive" of the trust relationship between employer and employee that "the relationship itself would inevitably perish".
But, despite a long line of decisions to the effect that the value of a stolen item is irrelevant (i.e. theft of even a small item would justify dismissal), two Labour Appeal Court decisions have cast some doubt on this principle. In two separate decisions, the Court in 2007 set aside a dismissal for petty theft, but in 2008 upheld another dismissal in very similar circumstances. Until there is clarity here, it is doubtless safest to take all relevant circumstances into account - factors such as: -
- The value stolen
- The circumstances of the offence
- Operational requirements in relation to staff honesty
- Staff policies in place
- Mitigating factors (length of service, clean disciplinary record, remorse, personal circumstances etc)
- Anything else relevant to the fairness of a decision to dismiss.
Critically, the employee's dishonesty must - as a matter of fact - be proved to have led to an actual breakdown of the trust relationship. Thus, in a subsequent Supreme Court of Appeal case, an employer's dismissal of its dishonest employee was set aside because it had failed to produce "direct evidence" to show that the trust relationship had, in a practical sense, been destroyed by the employee's misconduct.
In summary: even a petty theft or trivial act of dishonesty will in some cases justify dismissal, in others it might not. Take advice in each specific case - and check that your staff policies are correctly formulated, that employees fully understand that any theft or dishonesty (petty or serious) will lead to instant termination of employment, and that you can prove an actualbreakdown of the trust relationship arising from any misconduct.
Recent Articles for Sept 2010;
Source: www.dotnews.co.za
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