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Can you entrap an employee you suspect of stealing from you?

by , 12 November 2013
If you've ever wondered if you're allowed to trap an employee you suspect of stealing from you, the short answer is yes. BUT, you must do it legally or you'll definitely lose your case. Read on to find out how the courts have had to say on when it comes to entrapment...

Let's say you're the human resources manager in a large municipality. Thousands of rands' worth of copper cable is stolen every month. You suspect it's an 'inside job' and that your own employees are stealing and selling the copper.

You call in the help of forensic experts. They come up with a great idea: Two of them will approach the suspects and offer them good money for some copper cable.

As soon as your employees take the bait and come up with the cable, the forensics team will get video footage of the deal, then pounce and tell the suspects you'll be holding a disciplinary hearing on charges of theft.

But is this legal?

Was this a sure-fire recipe for a winning case?

NO, said the Labour Court in Cape Town City Council v SAMWU & others [2000] 11 BLLR 1239 (LC).

The Labour Law for Managers Loose Leaf Service explains that the City Council dismissed two long-standing employees after they trapped them into selling property belonging to the Council for their own gain.

The employees claimed their dismissal was unfair.

The Court noted there's no authority on entrapment in employment law, it's only in criminal law.

This means the Court had to consider the interests of the employer and the employee to make a decision in line with the Constitution.

What did the court decide?

Here's how the courts deal with entrapment

The Court didn't decide whether the practice of trapping is inherently unfair, but whether the trapping exercise conducted by the City Council fell within the requirements of the law.

It found the trappers went beyond merely giving the employees an opportunity to commit the misconduct because, before their entrapment, the Council had a general suspicion, but no direct evidence against these two employees.

The Council authorised a private investigator to conduct an investigation without finding out the methods it intended to use. The trappers made a number of attempts before they persuaded the employees to commit the misconduct and they used a story designed to elicit sympathy. And that means the trappers themselves acted in bad faith.

The Court found the evidence from the trap had been obtained in an improper manner and couldn't be used in court, and the Council didn't have evidence about its biggest problems: Theft and pilfering.

The Council had to reinstate the employees with retrospective effect.

What can you from this case of entrapment?

Trapping an employee you suspect of stealing from you isn't always unfair as sometimes this is the only way to catch a suspect.

BUT, you must be very careful how you use it. You can't offer an employee an incentive to do something wrong.

Here are the dos and don'ts of entrapment

Do:

  • Act on suspicious behaviour.
  • Monitor employees you suspect of dishonest behaviour.
  • Make sure you gather independent evidence for a disciplinary hearing.
  • Keep a record of any payments made for stolen goods, if possible.

Don't:

  • Lure innocent employees into a trap.
  • Offer incentives to employees to trap them into committing an offence, which they otherwise probably wouldn't have committed.

Now that you know how the courts deal with entrapment, don't get caught on the wrong side of the law while trapping an employee you suspect of stealing from you.

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