Discipline and Dismissal


This issue of entrapment crops up every now and again – I know it is a question raised in almost every course that I present.
Only last week I presented 3 workshops in Johannesburg and this question came up in all three. In  Mbuli / Spartan Wiremakers CC [2004] 5 BALR 598 (MEIBC) an employer arranged with one of his employees to act as a trap to catch another employee who was suspected of theft.


The employee who was acting as the trap purchased company goods from the suspect employee, who had stolen the goods from the employer – this resulted in the dismissal of the employee who sold the goods to the trap.


In addressing the issue of whether the evidence obtained by the trap was admissible, the commissioner took into account factors relevant to trapping in the workplace,  including the prevalence and seriousness of the offence; the availability of other means of detection; whether an average person would have been induced by the trap to commit the offence; the type of inducement used by the trap and whether the trap had acted in good faith.


It was found that the employer in this instance had been suffering serious shrinkage problems, and that the trap had been set up on the basis of reasonable suspicion. The employer had not used unfair methods to induce the suspect employee to commit the offence, and the employee's dismissal was found to be accordingly fair.


In NUMSA obo Abrahams / Guestro Wheels [2004] 4 BALR 520 (CCMA) the employee, a despatch clerk, was dismissed for making out false invoices for the sale of wheel rims to an “undercover agent”, and receiving money from the agent in return.


Here also, the employer had been suffering stock shrinkage and resorted to installing an undercover agent to try and catch the culprits. The undercover agent purchased stolen goods from the employee, and the employee was dismissed.


In SERTAWU obo Phiri & another / De Beers Consolidated Mines Ltd (Venetia Mine) & another [2001] 2 BALR 185 (CCMA), the employee, a blaster, was dismissed after being found guilty of accepting a bribe. He was subsequently convicted of corruption in a criminal court. Notwithstanding the fact that he had pleaded guilty to the criminal charge of corruption, the applicant alleged that he had been falsely accused.

        

He also contended that his dismissal was procedurally unfair because the employer had relied on video material that had been unconstitutionally obtained, and because the employer had denied his request for a postponement of his disciplinary inquiry. The videotape recorded him demanding R7000,00 from a person who had purportedly serviced a machine, and receiving R2 000,00.

              
Although a procedural defect was found in the disciplinary procedure that was followed, the CCMA concluded that to award compensation would be more unfair to the employer than what it would be fair to the employee. As a result, no compensation was awarded.


Thus it would seem that where the employer has a reasonable suspicion of a crime being committed, and provided that any form of entrapment is fairly instituted and that no person is induced into committing a crime, the general situation is that the evidence obtained by the entrapment would be admissible. This is how ever, is not a hard and fast rule, because every case is unique.


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