Above all else dismissals must be fair

According to the law, for a dismissal to stand, it needs to be procedurally and substantively fair. In other words, the way in which the dismissal was carried out needs to be fair, as does the reason for said dismissal.

However, there are circumstances in which substantive fairness trumps procedural fairness. The case of Tlou and others / Barloworld Power – (2018) 27 CCMA 8.37.13. also reported at [2018] 7 BALR 793 (CCMA) sheds light on this situation.

Facts of the case:

● The employees were found guilty of selling goods that belonged to the employer. They kept the proceeds of the sales.

● As a result, they were dismissed.

● However, the employees argued that they had been dismissed based on inadmissible evidence and that they had been unlawfully entrapped:

The employer had video-footage – which was taken by an unknown person – which prompted an investigation. This had led to goods, which belonged to the employer, being discovered in the employees’ homes.

The employees argued that the video-footage had not been obtained in a proper manner.

● It was found that the employees had not been entrapped as a third party had approached the employer with the footage.

This had prompted an independent investigation. Thus the video-footage had not been improperly obtained. ● The dismissal was upheld.

Entrapment is allowed in labour law as long as it does not amount to enticement.

Can you steal me some goods? Answer yes, generally, is not entrapment and the evidence can be used.

In the case above, the footage led to the investigation and the investigation found the goods at the employees’ houses.

Jonathan Goldberg is CEO of Global Business Solutions