Using others to trap possible perpetrators
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.