Is it legal to “trap” employees suspected of theft?

August 31st, 2016, Published in Articles: EE Publishers, Articles: Vector

 

Have you ever wondered if you’re allowed to trap an employee you suspect of stealing from you? The short answer is yes, but you will have to do it lawfully or else you will lose your case.

Misconduct such as theft is by its very nature not easy for employers to identify, simply because they are not intended to find out about it. It is common practice for employers to resort to trapping their employees, for instance by installing hidden cameras or by means of other methods. We refer to this in law as Entrapment.

Example

Say thousands of rand worth of copper cable is stolen from you every month. You suspect an “inside job” and that your own employees are stealing and selling the copper.

Often, an employer might want to set a trap by using another person as bait to secure the conviction of the suspect in question. In executing the trap, the “trapper” will normally record the crime being committed. This may be telephone conversations, meetings or conduct by the employee in question. All this information is then used as evidence to subject the employee to disciplinary proceedings.

This, then, begs the question of whether it is legal.

No, says the Labour Court in Cape Town City Council vs. SAMWU and others, it is not legal.

In that case, two long-standing employees were dismissed after they were trapped into selling property belonging to the council for their own gain. The employees claimed that their dismissal was unfair.

The court stated that there is no authority on entrapment in labour law as in criminal law and it had to consider the interests of the employer and the employee to make a decision in line with the constitution.

The court’s decision

The court didn’t decide whether the practice of trapping is inherently unfair, but whether the trapping exercise conducted by the City Council fell within the requirements of the law.

It found that the trappers went beyond just giving the employees an opportunity to commit the misconduct because, before their entrapment, the council had a general suspicion but no direct evidence against these two employees.

The council hired a private investigator to conduct an investigation without determining which methods it intended to use. The trappers made a number of attempts before they persuaded the employees to commit the misconduct and they used a story designed to elicit sympathy. And that means the trappers themselves acted in bad faith.

The court found that the evidence from the trap had been obtained in an improper manner and was inadmissible in court, and the council had no evidence. The employees had to be reinstated with retrospective effect.

When is it legal?

In the case of Sugreen vs. Standard Bank of SA, an outside service provider had recorded a telephone conversation during which an employee accepted a bribe.

The commissioner held the view that the employer’s telephone calls and e-mails were legitimate areas of interest to the employer, and found that there was no recognisable breach of the applicant’s right to privacy. The commissioner took into account the following facts:

  • The recording was not aimed at entrapping the employee into committing the crime.
  • There were few other methods of securing evidence.
  • The recording was not part of ongoing monitoring.
  • It was not undertaken by the employer himself.
  • The recording was made during office hours using the employer’s telephone.

We deduce from these cases of entrapment that trapping an employee suspected of wrongdoing isn’t always unfair as this is sometimes the only way to catch the suspect. However, you must be very careful how you use it.

The correct way to use entrapment is to:

  • Act on suspicious behaviour.
  • Monitor employees you suspect of dishonest behaviour.
  • Ensure that you gather independent evidence for a disciplinary hearing.
  • Keep a record of any payments made for stolen goods, if possible.

Do not:

  • Lure innocent employees into a trap.
  • Offer incentives to employees to trap them into committing an offence which they would otherwise not have committed.

Now that you know how the courts deal with entrapment, I trust that you will not get caught on the wrong side of the law while trapping an employee you suspect of stealing from you.

Shantonette Pillay, ECA regional director, KwaZulu-Natal

 

  • Greg Gow

    Absolutely yes nail them any way that can be done

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