HR 101 - When is Theft not Theft?

ARTICLE 68

When is Theft, not Theft?

By Nikki Viljoen of Viljoen Consulting CC - May 2011

One of the most confusing experiences that I ever had is when I caught someone, literally with their hands in the cookie jar.  We held the disciplinary, followed the rules and the staff member was dismissed.  CCMA did not uphold the finding and we ended up paying a huge amount of money as a settlement.  Here’s a similar story – let’s bring in the protagonists.

Mike runs a small retail business in a busy mall.  He has several staff members, but today we are going to meet George and Jane, who are both sales people in the shop.

Everybody works well together and as a team and Mike is grateful to have such a great team.

We all know that month-end in a mall is crazy busy and there is no time to stop and smell the coffee, let alone slip out of the store to go and buy anything.

George has a new girlfriend whom he is besotted over and he is constantly messaging her from his cell phone and even sneaking the odd call while he ‘collects’ product from the stockroom.  Suddenly in the middle of a conversation where he is arranging to meet the love of his life after work for dinner, he runs out of airtime.

Caught up in the moment and concerned that he won’t connect with her that evening, George doesn’t stop to think about what he doing.  George walks into the staff room and takes Jane’s phone out of her handbag that was lying open on the table and calls his girlfriend back.

As he makes the call, Jane walks in and finds George making a call on her phone – she freaks and rushes off to tell Mike!  This is the first hint of any kind of dishonesty and Mike is furious.

When George is confronted, he admits that he took the phone of Jane’s bag and that he used it without permission, but he denies that he ‘stole’ the phone.  Mike disagrees because as far as he is concerned, when you take something without permission – it’s theft.

George is disciplined, found guilty and is dismissed.  George goes to the CCMA and they overturn the dismissal and Mike has to pay out 12 month’s salary as a settlement to George.  Mike is gobsmacked, as I am sure most of you are right about now.

The CCMA found that ‘dismissal was too harsh a penalty in this case because the charge had been unauthorised possession” of the cell-phone and that nothing was documented about dishonesty or that the relationship of trust had been destroyed.”

You see ‘Unauthorised possession” is not automatically a dismissible offence and had they proved or shown that George was dishonest or that he could no longer be trusted, the outcome would have been very different.

The reality of the situation is that as individuals, we would never even dream of representing ourselves in a court of law, and yet as Entrepreneurs, we consistently and continuously insist on representing ourselves and our company’s in labour issues.

Please ask for help when you need it, experience shows that it will cost you far less in the long run!

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za or http://www.viljoenconsulting.co.za