Scenario 1 – Employee is suspected of committing a criminal offence within context of the working environment
It can, for instance, be the cashier suspected of stealing cash or an employee removing company property from the premises without authorisation.
It needs to be borne in mind that there is, legally, a vast difference between charging and prosecuting a person criminally and charging and disciplining a person within employment context, although the underlying facts may be the same.
Where the former follows the rules and dictates of criminal prosecution, the latter veers towards the rules and dictates of civil prosecution, although we do not use the term “prosecution” within employment related context.
In order to take due cognisance of the above-mentioned difference, I have always advised that, where potential criminal conduct is at stake involving an employee, the following should be done, when at all possible:
- Do not over-hastily involve the SAPS but create time to firstly deal with the matter as an internal disciplinary matter and only thereafter report the matter formally to the SAPS.
The reason is that once the employee is arrested and held in custody awaiting trial, it becomes logistically a lot more difficult, if not impossible, to handle the matter internally, as the employee is not readily available. This, inevitably, unnecessarily prolongs the finalisation of the matter internally.
- Refrain from charging the employee with conduct using words and terms which have a criminal definition. It only unnecessarily increases the complexity related to the elements of conduct the employer would be burdened to prove. Example – Where it is suspected that the cashier stole an amount from the cash register and cannot account for this loss, do not charge the cashier with having committed theft (although, technically, theft may have been committed). Rather frame the charge so that it describes the conduct of the employee in layman’s terms and thus in a way which is easy to prove on a balance of probability, without giving it a criminal label. The charge can read as follows: “It is alleged that you removed the amount of R200.00 from the cash drawer entrusted to you without the necessary permission and failed to provide a valid explanation for this loss”.
It stands to reason that only a criminal court has the legal ability and jurisdiction to find a person guilty of a criminal offence. An internal disciplinary hearing simply does not have the required legal stature to try and convict an employee criminally.
Provided that the charge suggested above can be substantiated, satisfying the onus of proof in civil cases, being a balance of probability, a guilty finding within this context is serious enough to warrant a summary dismissal.
Once dismissed, the matter can be reported to the SAPS who will probably arrest the now ex-employee and keep him/her in custody while awaiting trial.
In the criminal case the employee in this example is most likely to be charged with theft and eventually may or may not be found guilty as charged, bearing in mind that the onus of proof in a criminal case is the more onerous onus: beyond all reasonable doubt.
Because, in consequence of my advice above, the employee had been charged with a different charge in the disciplinary proceedings and was found guilty satisfying a different onus of proof, as would have been the case in the criminal proceedings, he/she cannot, upon incidentally being found not guilty in the criminal court, rely on the outcome of the criminal case to regard his/her dismissal in the disciplinary proceedings as unlawful.
Note – Admittedly, not all cases where an employee commits a criminal offence in the workplace, may allow the employer the latitude to stay the arrest by the SAPS until the internal disciplinary proceedings can be followed through to its logical conclusion. Arguably, it is however likely to be possible in the majority of such cases.