Misconduct & Dishonesty

Charged for office fling?

Is it a disciplinary offence for employees to engage in an office affair?

Not necessarily unless of course one of the partners is a poor performer!  There is a limit to the degree of control that an employer can exert over an employee,

 

and by and large, the control ends when the workday does.  Equally, where people get together, there is always an element of the birds and the bees, and many firm and wonderful relationships began at the coffee machine.



As always, it is not so much what happens, but the impact of the actions on the employer and the employment relationship that leads to disciplinary action, and relationships do have the potential to lead to abuses or undesirable outcomes.  So where there are reporting relationships, the possibility of collusion, fraud, or one party audits the work of another, such relationships can lead to difficulties.



There is no problem in the employer making this known, and having a general obligation for the parties, especially the senior one to disclose the relationship, so that steps can be taken to avoid difficulties.



In the absence of this disclosure, the actual harm that results, as well as the failure to disclose could well lead to a need for disciplinary action.  Of course, where any employee abuses his power to compel or solicit sexual favours is an absolute no-no, and is grounds for dismissal – irrespective of position!



Does your company have a policy? What does it state? Perhaps you’ve been involved in an office romance and could comment?

 

A Weighty Matter

It all points to ...There was the case of the platteland butcher who weighed his female staff when they came to work in the morning and when they left, to ensure they had not hidden food away on their person.  Does an employer have the right to weigh his employees, or is this an invasion of privacy?  The question should not be taken lightly, and might yet end in the Constitutional Court as a matter of alleged discrimination.

What does your company do? What are your thoughts? Does your company have a way of dealing with theft or dishonesty that is unique to its sector or the company itself?

Must I tape record hearings?

This is another of the by-products of excessive proceduralism. You do not have to do it, and indeed, there are many reasons why you should not. You also do you need verbatim minutes.

If you must get involved in recordings, contract out to DGG, Sony Music, or EMI. They are all in the recording business, and can do a better job of it. You might even get lucky and be able to sell the CD’s of your hearings to the ex-employee and his family, and at the end of the year do a ‘best of’ album.

Why did we ever get involved in this? Once again, it is because of a fundamental ignorance of the laws of evidence on the part of management, or their HR people. It is the same kind of ignorance and lack of common sense which wants employee to sign for everything, and has lead to the situation where employees refuse to sign anything.

If you wish to record hearings there is nothing to stop you, but it does add significantly to the cost, you are going to have to transcripts typed if you want to use them at a later date, and invariably the recording are of bad quality, and are inaudible at the vital spots. Witnesses, who were present at the hearing, and who can testify as to what took place, are much more useful than a tape - and much more credible too. But, if you want to record hearings, do so, but have a copy made to give to the employee. Either way, he is going to allege you falsified the recording, put incriminating bits in and removed the evidence which proves he was innocent, He will then look at you smugly, in the belief that if you cant disprove his allegation it must be true.

Don’t go there in the first place!

Traps For the Unwary

A frequently occurring problem is that of the employee whom you ‘know’ is stealing, but you cannot prove it.  One way that employers tackle this is to try and catch them red handed by setting a trap.
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Entrapment may be used legally (at least for the present), but if you have to resort to it, you will need to be able to show the following;

* entrapment is a last resort – you have tried to uncover the theft with more conventional means, and these have failed
* that the loss is serious and continuous  - it  is not a once off loss of trivial value, but rather a consistent drain on your profits
*  the trapper has not unduly encouraged the employee to commit the offence – if the employee does not rise to the fly immediately, cast your line elsewhere
* that you have other evidence of the loss – in other words, you cannot rely solely on the trap
*  that the trap is not a fishing expedition – in other words it is aimed at uncovering a specific set of circumstances, and not a general outing to see if you can catch a thief

So beware when spinning the meshes to entrap others – you may end up a victim yourself!

Useful Tip:Disciplinary Charges

Wherever possible, relate acts of misconduct back to the common law duties of the employee – this will give you a very clear insight as to what the misconduct is, and why it is (or is not) serious.  If it pertains to the common law duties, you are usually on solid ground, and it will also give you a strong foundation for your charges.  Equally, no employee can argue that they are either ignorant of, or not bound by these basic obligations.  We will discuss them further in an upcoming note……. to be contiunued.