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HR 101 – To Steal or Not to Steal

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Please note that this pertains to South African Labour Law and Best Practice requirements.

When you catch an employee stealing, your initial ‘knee jerk’ reaction is one of ‘get them out of my sight and out of my company (preferably before I do them grievous bodily harm).’ Step away from the employee – no, seriously – step away from the situation it is full of emotion and that emotion will induce you to do something that you will regret.

Gone are the days when you could just dismiss an employee for stealing. Gone are the days when you could just tell an employee to pack up and go – the rules are in place and if you don’t follow them, you will be the one paying the consequences for their misguided youth.

Here’s the deal:

Theft is considered a ‘misconduct’. The Code of Good Practice states “Dismissal imposed several requirements on an employer who is considering dismissing an employee for misconduct.”

“Three of these requirements are:
1. The employer should first consider factors such as the employee’s length of service and disciplinary record;
2. The misconduct must be of such a grave nature that it makes a continued employment relationship intolerable and
3. An employee should be dismissed only if they have been found guilty of gross misconduct.”

So what is considered as ‘gross misconduct’? Some of these are (but not limited to):
• deliberate (wilful) damage to the employer’s property
• deliberately (wilfully) endangering the safety of others
• Physical assault on the employer, a fellow employee or a client/supplier
• Gross insubordination (so they can steal from you but they can’t give you the finger)
• Gross dishonesty.

In the old days, stealing from your employer meant that you were dishonest and that dishonesty meant that your employer could no longer ‘trust’ you and meant that your continued employment would be intolerable for the employer – well those were the ‘old’ days. Things have now changed – again.

You see, the law says it has to be ‘gross dishonesty’ and therefore not all dishonesty. Therefore this means that not all ‘theft’ can be considered as ‘gross dishonesty’.

My take on this is that if my employee lies to me, I cannot trust them. If they steal from me, I cannot trust them and quite frankly if I cannot trust them then I don’t want them to be working in my company let alone anywhere near my space. The law of course, sees this in a different light.

Remember that mitigating circumstances have to be taken into account – those are things like number of years that the employee has been employed by the company and whether or not they have a clean disciplinary record or not.

The employer also has to prove that continued employment of the employee will make the employment relationship intolerable. This proof would have to show that the relationship was not merely damaged but actually destroyed.

Note to self – outsource everything that you can!