INSIGHTS

Court Guides Employers on the Procedural Dismissal of Thieving Employees

The Employment Act provides strict guidelines that are skewed in favour of Employees and any Employer who overlooks or skips any step in the procedure is liable for unfair termination.

Introduction

Background

The Employment Act provides strict guidelines that are skewed in favour of Employees. Some of these guidelines are provisions on the termination of an employee that Employers must follow to the letter. Any Employer who overlooks or skips any step in the procedure is liable for unfair termination.

Consequence

Countless Employers have been found guilty of unfair termination even in instances where it has been proven that the Employee had stolen from them. This is because courts are more concerned with whether due process was followed, than the outcome of investigations conducted by Employers.

The Case

Our firm recently defended an Employer in an appeal against a judgment that found that their decision to dismiss an employee without prior notice was valid. The case involved the Appellant, a former Employee tasked with delivering nuts from a collection center to the factory for processing. On one occasion, the Appellant stopped during the journey and offloaded a portion of the cargo to unknown individuals. At the factory, an inventory was taken which revealed that there were fewer nuts than were loaded. The Appellant was subsequently issued with a notice for a disciplinary hearing, during which he failed to explain the missing nuts and attempted to shift the blame onto other employees. It was then that he was dismissed from employment without notice, for theft.

The disgruntled Employee then unsuccessfully sued his former Employer for unfair termination claiming the lack of a termination notice, and that insufficient evidence was given to prove that he was responsible for the loss. In the suit, court sided with the Employer, stating that his failure to explain the missing nuts was a justifiable reason for the Employer to believe him to be guilty.

He then proceeded to appeal the decision in the present case where the court also sided with the Employer, stating that the Employer had convinced the court that the Employee was guilty of theft. The court, in affirming the innocence of the Employer, stated that the correct procedure of giving an opportunity for fair hearing through a notice to show cause was followed. It added that the employee was given ample opportunity to defend himself but failed to do so convincingly.

The court also stated that the standard of proof required to justify the dismissal of an employee was on a balance of probabilities, and provided that there was a genuine belief backed by reasonable evidence, the Employer could proceed to dismiss the suspected employee. It was not the burden of an employer to give proof beyond unreasonable doubt as is required in criminal matters.

The Outcome

The High Court dismissed the Appeal, stating that the Employer’s decision to fire the former driver after a procedural inquiry and fair disciplinary hearing was lawful. It also stated that the evidence gathered by the Employer against their former driver was sufficient.

Conclusion

The court’s decision has reinforced the exception to the rule, that it is unlawful to dismiss Employees without notice. Employers may summarily dismiss Employees who have been proven guilty of gross misconduct including absenteeism, intoxication during working hours, using abusive language towards their superiors, refusal to obey Employer’s instructions and committing of criminal offenses against their Employer. It is, however prudent that in proving the allegations against the Employee, all Employers keep meticulous records, provide an opportunity for fair hearing, and involve legal authorities where crimes have been committed in order to avoid subsequent claims of abuse of human rights.

Key Insights at a Glance

The Employment Act provides strict guidelines that are skewed in favour of Employees. Any Employer who overlooks or skips any step in the procedure is liable for unfair termination.
Employers may summarily dismiss Employees who have been proven guilty of gross misconduct including absenteeism, intoxication during working hours, using abusive language towards their superiors, refusal to obey Employer’s instructions and committing of criminal offenses against their Employer.
In proving the allegations against the Employee, all Employers keep meticulous records, provide an opportunity for fair hearing, and involve legal authorities where crimes have been committed in order to avoid subsequent claims of abuse of human rights.

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