Entrapment: A guide for employers suspecting misconduct

Entrapment: A guide for employers suspecting misconduct

Entrapment: when the employer lures the employee into committing misconduct that the employee would not have committed but have done so due to the ensnaring methods of the employer. The evidence obtained by the employer can be of any kind such as video evidence, recorded telephone conversations, witnesses etc.

Significant findings from case studies

In Maswangyani v Mitek Industries (Pty) Ltd, the Commissioner came to the conclusion that, for the employee to prove entrapment, he/she needs to prove that the employer had the intention to entice him/her to commit an offence.

An imperative point i.e. “going beyond providing an opportunity” was raised and argued in the case of Cape Town City Council v SAMWU and others. Two long employed employees were entrapped and dismissed after they sold the council’s property for their own gain. After numerous attempts the entrappers persuaded the employees to commit the offence. The Labour Court decided that the employer obtained the evidence improperly and was inadmissible due to the employer going beyond merely “providing an opportunity” to the employees to commit the offence.

The fact that the suspected employee utilizes the company property during working hours to commit misconduct was elaborated upon in the case of Sugreen v Standard Bank of SA (2002). It was found that the evidence obtained by the employer, in the form of a recorded telephone conversation of the employee utilizing the company telephone in accepting a bribe, was admissible due to the fact that the employer’s areas of interest are his telephone and email facilities.

In Mbuli v Spartan Wiremakers CC, the employer caught the employee selling wire at half the normal price to a colleague in a trap set up by the employer. It was found that the trap was fair and legal due to the serious shrinkage problem of the employer, reasonable suspicion against the employee and that the employer did not go beyond encouraging the employee to commit the offence.

Guidelines for employee entrapment

Employers should follow the following guidelines when considering entrapping an employee and for the evidence to be admissible:

  1. Monitor suspicious employees.
  2. Act on suspicious behaviour.
  3. The evidence gained from the trap cannot be used as the sole evidence, it must be supported by other corroborating evidence of the misconduct.
  4. Do not go beyond giving the opportunity to the employee to commit the offence.
  5. Avoid trapping employees by offering them rewards to commit misconduct which they normally would not have committed.
  6. Do not “engineer” a situation which pressures or induces the employee to commit the misconduct.

 

ABOUT THE AUTHOR

Frikkie van Tonder obtained a Bachelor of Commerce (B.Comm Law) degree in 2009 from the University of the Free State. He was registered as a candidate attorney in 2010 with Vermaak & Dennis Attorneys in Bloemfontein. In 2011, he obtained a bachelor of laws (LLB) degree from the University of the Free State and completed his articles of clerkship in 2012. In April 2012, he was admitted as an Attorney in the Free State High Court, Bloemfontein. After admission, he practised as an attorney for two and a half years before joining SEESA’s Bloemfontein office in June 2015 as a legal advisor for SEESA Labour, where he specializes in labour law.

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