WHEN does a trap placed by an employer become unlawful entrapment?

Entrapment can be described as the action of tricking someone into committing a crime or an act of misconduct in order to secure their prosecution or dismissal. It begs the question, was the employee predisposed to commit the misconduct before being afforded the opportunity to do so by the employer? Or, in the same vein, would the employee have committed the misconduct given an ordinary opportunity to do so? This leads to a further question: how would the employee have acted had the trap not been present.

Entrapment is a somewhat controversial subject, with most decided cases being found in the sphere of criminal law. However, key labour judgments exist that cast light on the manner in which entrapment cases are to be dealt with in the realm of dismissal law. Historian Kenneth Murchison argues that entrapment was a judicial response to prohibition in the US and evolved as a legitimate defence in the 1920s. The distinction between the approach to entrapment adopted in criminal (lawfulness) and labour (fairness) cases is important.

The Labour Court judgment in the Cape Town City Council v Samwu & 2 others (C367/98) is considered to have been a landmark judgment in workplace entrapment cases. The judgment refers to the Oxford Dictionary of Law (4th Edition, 1997) as defining entrapment to mean “deliberately trapping a person into committing a crime in order to secure their prosecution”. Perhaps most significantly, this points to, in employment terms, an employee being lured into committing an act of misconduct, thereby introducing the concept of inducement.

Section 252A of the Criminal Procedure Act specifically addresses “traps and undercover operations and the admissibility of evidence so obtained”. The principal factors, paraphrased, are entrapment evidence is admissible if it does not go beyond providing an opportunity to commit misconduct, when considering whether the employer’s conduct goes beyond providing an opportunity to commit misconduct, the prevalence of the misconduct and its seriousness, the availability of other techniques of detection, the degree of persistence and degree of deceit or trickery, will be factors considered.

Further key factors include “the availability of other techniques for the detection”, “whether an average person who was in the position of the accused, would have been induced into the commission of an offence”, “the type of inducement used, including the degree of deceit, trickery, misrepresentation or reward” and “the degree of persistence and number of attempts made by the official or his or her agent before the accused succumbed and committed the offence”. However, to what extent will the law relating to entrapment in the criminal law sphere have a bearing on how entrapment will be dealt with in the context of employment?

Factors which will be assessed are whether the employer’s conduct included threats, implied or expressed, during the entrapment process and whether there were grounds for reasonable suspicion before the trap being set. In this judgment, the court held that “guidelines and parameters no less rigid or strict than those set out in section 252A of the Criminal Procedure Act should be applied in the context of the employment relationship”. The judgment in the Cape Town City Council case noted that while the Criminal Procedure Act approach to entrapment provisions should be applied in the context of employment, “I would be reluctant if not unlikely to hold that a system of trapping (obviously properly constrained) may never be fair in the employment context”. In this vein, the judgment continued that: “There are circumstances in which law enforcement (and the pursuit of justice generally) would be impeded if the evidence obtained from a trapping situation were excluded.”

The notion of lawful and unlawful entrapment therefore arises, with employers needing to ensure that they do not unduly influence an employee to commit an act of misconduct. Put differently, an employer cannot be found to have lured an employee into committing an act of misconduct. As such, the notion of lawful “trapping” is distinguished from unlawful “entrapment”. For an employee to succeed in a defence of entrapment, it must be proved that the employer had the intention to entice him/her to commit an offence. In the final analysis, if the trap has been constructed so that that the suspect had a choice as to whether to commit the act (that is, was he/she coerced, tricked or left with little choice but to commit the act) the evidence gathered will be admissible.

Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Visit www.tonyhealy.co.za. Call 086 111 5375 or email [email protected].

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