Theft prevention is a focus area in many organisations and is implemented with many strategies such as installing video surveillance, around the clock security and random search policies. Every effort is made to monitor employee activity and yet, very often, employees never get caught red-handed.
For example, a company uses precious metals in their production process and therefore has around the clock video surveillance on their production floor. The cameras capture footage of employees displaying suspicious conduct over a period of two hours. This conduct includes loitering in unassigned work places, discussions and frequent checking of containers holding precious metal.
The company discovers thirty grams of precious metal is missing during the same two hours. After rigorous testing of the production process, the employer arrives at the conclusion that the precious metal has been stolen.
The video footage is examined and the employer is convinced that the employees involved in the production process during that time removed the precious metal. Crucially however, the employer never actually witnesses the employees removing the precious metal, nor is this act captured on the video footage.
This begs the following question: what are the implications for the employer when an overwhelming suspicion of misconduct is perceived and disciplinary action needs to be taken?
In the case of Algorax (Pty) Ltd v Chemical Industrial Workers Union and others (1995), the Labour Appeal Court confirmed that an employee can be dismissed on suspicion provided the suspicion is bona fide (in good faith), reasonable and renders the continued employment relationship intolerable.
In this case a driver was delivering old iron sheets to a customer. A random spot-check was performed on his vehicle and new iron sheets were found between the old iron sheets. Only the old sheets had been authorized for removal. The employee who loaded the sheets onto the truck testified that the driver had instructed him to load the new sheets onto the truck. The truck driver denied any knowledge of the new sheets on the truck.
The dismissal of the driver was confirmed to be fair, based on the suspicion that he had to have been involved in some way or another. This was considered a reasonable conclusion.
In the more recent case of Senzeni Mbanjwa v Shoprite Checkers and others (2013), a cashier was suspected of under-ringing items purchased by a car-guard whom she was seen talking to, earlier in the day. This gave rise to the suspicion of collusion by her supervisor.
The cashier was dismissed and referred her matter to the CCMA. The Commissioner concluded that the Employee's dismissal was substantively unfair, having being based only on suspicion.
Shoprite Checkers reviewed the matter in the Labour Court, which held that, because the commissioner did not weigh the evidential material, as would be expected, that the matter be return to the CCMA to be heard again.
This decision to remit was appealed by Mbanjwa. The Labour Appeal Court affirmed that the employer bears the onus to prove, on a balance of probabilities, that the misconduct was indeed committed by the employee.
The court set the requirement that even if strong reasonable suspicion exists, that there needs to be tangible and admissible evidence to sustain a conviction for the misconduct in question. The material issues and evidence presented to the commissioner could not produce an inference of her guilt of misconduct. Dismissal could not be justified.
So, what are the implications for employers?
- Suspicion does not warrant a dismissal;
- There must be tangible and admissible evidence of the misconduct;
- Circumstantial evidence should only be used to link the chain of events; and
- The Commissioner must believe that the only inference that can be drawn from the evidence is that the misconduct occurred.
Even though the employer never physically sees the misconduct taking place, the added sum of all the evidence must sustain a dismissal-ruling for the misconduct. This is inevitably be supported by the burden of proof in labour matters that dictates that employers need only prove that, on balance of probabilities, that it is 51% more likely that the misconduct occurred than unlikely.