I remember watching the movie Entrapment. Catherine Zeta-Jones all dressed up and ready to go thieving into the night, all the while Sean Connery looking on. Rubbing his hands in delight as she fell into his trap, and, ultimately, in line with his plans. And yes, I know the storyline has a few more ins and outs, but my focus here is on one question. And that is: Can you use entrapment to catch an employee red-handed?
This simple is answer is yes. But you have to make sure you do it legally or all the evidence you masterfully collected while setting your devious trap, will hold no credibility in court. And your thieving employee may get off scot-free.
Let's see what this means for you...
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Your employee's guilty of misconduct. Let's say he took a company laptop home, without asking permission. It's a simple open and closed case of theft, isn't it?
Not so fast! You can't just say 'that's it, you're out of here' and think that's the end of that. No, you still have to have a disciplinary hearing. You still have to give him a chance to defend his case, and explain why he did that.
And part of this process is collecting evidence...
Firstly: What exactly is entrapment?
In criminal law, it means someone lures another person into committing a crime. It's specifically for the purpose of getting a criminal conviction against him. Just like the movie. The problem with this is that the person might not have committed the crime if there hadn't been a trap. Chances are the trappers' actions are also illegal.
But when it comes to employees, no South African court has ever accepted entrapment as a defence to a criminal charge. Our labour courts rather look at the evidence you get through entrapment, as long as the trap is only there to prove an action the employee would commit anyway.
Let's look at an example below...
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The different types of evidence you can legally present... Even if you got it through entrapment!
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Examples of entrapment
You suspect one of your drivers is syphoning petrol from your delivery van. There are two ways to entrap him, one is legal and the other isn't.
Trap number 1
You get one of your colleagues, Sidney, to approach your driver, let's call him Tom. Sidney strikes
up a casual conversation with Tom complaining about how much petrol keeps going up, and how he's battling to cope financially. Tom then offers to 'help' Sidney out. He says he can get Sidney a rationed amount of petrol at half the price of a filling station.
Trap number 2
Sidney approaches Tom. He tells Tom he'll pay him ¾ the price of petrol if Tom will get him some petrol. Sidney knows Tom is in financial trouble and has a gambling debt to pay off.
So which trap can you use as evidence in a disciplinary hearing?
The first trap of course! Why, you ask? Because Sidney never enticed Tom to commit the offence. Tom offered it to him.
The second trap's evidence and Sidney's testimony from the example won't be admissible evidence. This is because there's no proof that Tom would've syphoned the petrol and sold it, if Sidney hadn't suggested it to him and offered to pay him, knowing his financial situation.
So, there you have it. And while it isn't as 'cloak and dagger' as the movie made it out to be, you can catch an employee red-handed! You can also find out more in chapter E17: Entrapment in your Labour Law for Managers. Still not a subscriber? Get your hands on yours now!