BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za.
I have constantly warned employers that winning at the CCMA is difficult because:
- The employer is the accused at arbitration in the same sense as the defendant in a criminal case
- The employer is normally required to present its case first
- The employer is assumed, from the outset, to be guilty of committing unfair dismissal until it proves itself innocent.
These three factors make the employer’s task of convincing the arbitrator that the dismissal was fair extremely difficult. The employer will not even get to first base until it has persuaded the arbitrator that the employee was guilty of the misconduct or poor performance that resulted in his/her dismissal. An added factor that seriously tips the scales is that too many employers do not make enough effort to provide proof of the employee’s guilt.
On the other hand there are a number of employers who do fully appreciate the uphill battle they have in proving the employee guilty, and who appreciate why such proof of guilt is crucial to winning at arbitration. However, these enlightened employers are still stuck with the problem of how to prove the employee’s guilt. Employers use a variety of methods to prove guilt, some of which are neither recommended nor legal. Methods that are legitimate and potentially effective include:
- Carrying out a thorough investigation so as to gather relevant facts
- Using documents as proof
- Backing up the documentary proof with video footage, audio evidence and polygraph test results
- Calling witnesses to give truthful and relevant testimonies
- Trapping the suspected employee.
Methods that are illegitimate and dangerous include:
- Falsifying documents and taped evidence
- Getting witnesses to lie
- Coercing the accused employee into confessing
- Entrapping the suspected employee illegally.
Often employers get confused between the method of trapping the employee (which is legal) and illegal entrapment. Entrapment occurs where the employer lures the employee into carrying out misconduct that the employee would not have carried out but for the ensnaring methods of the employer. For example, the employee is suspected of using illegal drugs at the workplace. The employer hires a detective to pose as an employee and the detective offers to sell the suspect some Mandrax.
The employee refuses the drug but the detective then persuades the employee to accept the drugs by taking one himself giving one to the suspected employee for free. The employee is caught taking the Mandrax and is dismissed. In this case, the employer has engineered a situation where the employee was pressured into taking the Mandrax (because the detective used strong persuasive methods to get the employee to take the Mandrax). While the employee might have taken drugs anyway, without the undue inducement he/she might not have taken them.
On the other hand, trapping the employee is acceptable. A legitimate trap would be, for example, where the employer suspects that the employee uses a particular vacant office to shoot up with heroin at tea time. The employer would be entitled to wait until the employee goes into that office, give him/her time to begin the injecting process and then go in and catch the employee red handed. This is not entrapment because the employer did not unfairly induce the employee into taking drugs.
While the examples I have given above of legal trapping and illegal entrapment represent two very different methods of catching an employee out there are many cases where the line between trapping and entrapment is blurred. For example, in the case of Mbuli vs Spartan Wiremakers cc (2004, 5 BALR 598) the employer set the suspected employee up by getting a colleague to ask the suspect to supply him with wire for private purposes. The suspect then sold to the colleague, at half the normal price, some wire taken from the employer’s stock. The employee was caught, disciplined and dismissed. He complained to the bargaining council that he had been entrapped illegally because the employer had set him up. The arbitrator found that the trap was a fair and legal one because:
- The employer had suffered a serious shrinkage problem
- The trap was set due to reasonable suspicion against the employee
- The employer did not go beyond giving the employee the opportunity to commit the offence. That is, the trapper did not pressure the suspect into supplying the wire, did not use persuasive measures such as comradeship or sympathy and did not exploit any weakness of the suspect employee.
This case reveals the subtle factors that can distinguish between legal trapping and illegal entrapment. Due to the technical nature of these distinctions employers are strongly advised not to use traps until they have consulted with a reputable expert.
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