Us­ing oth­ers to trap pos­si­ble per­pe­tra­tors

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - LAV­ERY MODISE & BOITUMELO KHOZA

EM­PLOY­ERS fre­quently use the ex­per­tise of a pri­vate in­ves­ti­ga­tor or the as­sis­tance of an­other em­ployee to “trap” em­ploy­ees who are sus­pected of hav­ing com­mit­ted of­fences, es­pe­cially re­lated to theft.

This tac­tic is also com­monly used by the po­lice to trap per­pe­tra­tors of crime. The ev­i­dence ac­quired dur­ing the “trap­ping” is used against the per­pe­tra­tor in a crim­i­nal case to ob­tain a con­vic­tion. The ques­tion that comes up is whether ev­i­dence ac­quired dur­ing the trap­ping can be used against an em­ployee in a dis­ci­plinary hear­ing in the work­place.

Sec­tion 252A of the Crim­i­nal Pro­ce­dure Act reg­u­lates the con­duct of the po­lice when ap­ply­ing the prin­ci­ple of en­trap­ment. The sec­tion pro­vides the cri­te­ria that should be used by the court when de­ter­min­ing whether to al­low the ev­i­dence of the “trap” to be utilised in the crim­i­nal trial.

The Labour Court has held that it will con­sider ev­i­dence ob­tained through en­trap­ment. This is, how­ever, sub­ject to the court care­fully scruti- nis­ing the ev­i­dence ob­tained. The Labour Court has also pro­vided that sec­tion 252A of the Crim­i­nal Pro­ce­dure Act, though a crim­i­nal law stan­dard, should be ap­plied as guide­lines to be taken into ac­count in labour law.

The Labour Court will have con­sid­ered var­i­ous is­sues when eval­u­at­ing whether the ev­i­dence should be al­lowed, such as: The con­duct of the trap­ping agent; The type of in­duce­ment used; The de­gree of de­ceit; Whether any threats were made; Re­ward of­fered; and Did the trap­ping agent merely

The Labour Court has held that it will con­sider ev­i­dence ob­tained through en­trap­ment

pro­vide an op­por­tu­nity for the mis­con­duct to be per­formed

The court will also con­sider whether an av­er­age em­ployee in the same po­si­tion as the dis­missed em­ployee would have been in­duced into com­mit­ting the mis­con­duct.

Though the ev­i­dence ob­tained by the em­ployer is ad­mis­si­ble, the em­ployer can­not merely rely on those facts pro­vided by the in­ves­ti­ga­tor to sanc­tion a dis­missal. Be­fore us­ing a trap, an em­ployer should ob­tain ad­vice and an em­ployee who has been trapped would also be well ad­vised to ob­tain ad­vice in re­la­tion to his rights.

Newspapers in English

Newspapers from South Africa

© PressReader. All rights reserved.