The unauthorised use or possession of property belonging to the employer or the client of the employer is regarded as serious and sufficient to deem a dismissal fair. It is important that there be a clear rule that has been applied consistently and that the employee is aware of.
The employer needs to prove the following:
- That there is a clear rule that is consistently applied ;
- The rule is reasonable;
- The employee is aware of the rule;
- That the employee had the goods in question; and
- The employee did not have permission or authority to be in possession and/or take the goods.
A common occurrence regarding the above is the unauthorised use of company vehicles.
The following must be considered when dealing with the seriousness of the unauthorised use of company vehicles:
- The employee’s past disciplinary record; and
- The severity of the violation.
When the nature of the employee’s job entails the driving of a company vehicle, private use of the company vehicle without permission or authority is frowned upon. Hence the employer has to take into consideration that if the employee is involved in a motor vehicle accident stemming from an unauthorised trip, the employer may be held vicariously liable unless the employer can prove that the employee was using the vehicle outside the scope of his duties, not to mention the wear and tear on the vehicle. An employee who is involved in a motor vehicle accident using the company vehicle with no permission will be deemed as serious.
In the absence of an agreement with the employer, employees who use company property for private purposes may be dismissed if there is a clear rule prohibiting such unauthorised use as was held in Ndlala v Value Truck Rental (1995) 9 BLLR 138 (IC).
In Continental Oil Mills (Pty) Ltd v Singh NO and Others (2013) 34 ILJ 2573 (LC), the Labour Court held that the common factor in matters of theft and unauthorised use of the property is dishonesty. The employee was accused of removing a bottle of mayonnaise from the production line, which was discovered in her bag. The reason provided was that she had removed the bottle of mayonnaise for testing purposes. The court then had to decide whether the conduct constituted theft or the unauthorised use of property. The court held that; “Generally, theft and unauthorised possession belong to the same genus of dishonesty. Both are premised on an employees’ conduct, depriving the employee of the ownership of a good. The dismissal of the employee was therefore found not to be unfair.
The employer’s disciplinary code should state clearly that the dismissal is the consequence of an infringement of the unauthorised use of property belonging to the employer.
Want to know more about the process, as discussed above? Kindly contact your nearest SEESA Labour Legal Advisor. Alternatively, leave your contact details on our website, and a SEESA representative will contact you.
About The Author:
Sharado Parbhoo is currently a Labour Legal Advisor at the Durban branch. He studied at the University of KwaZulu-Natal where he obtained his L.L.B degree, and is an admitted attorney of the High Court of South Africa.
Resources:
- ceosa.org.za/unauthorised-use-of-company-property-and-the-employers-recourse/ Article by Gordon Flanagan;
- Recognition is given to John Grogan- Dismissal Third Edition- Unauthorised use of the employer’s property.