Our firm is frequently asked by clients, whether it is permissible to ‘lay a trap’ for staff suspected of, for example, dishonesty.
Let’s for example, use the example of an employer suspecting that a receiving clerk is a member of a syndicate, which includes the driver of a supplier. In this case, as is indeed unfortunately, quite a common practice, the driver of the supplier and the receiving clerk of the customer, agree that the clerk will sign receipt of a quantity of goods which is higher than the quantity actually delivered; the driver then sells the undelivered goods, and shares the proceeds with the clerk.
This is but one of the many scams performed by syndicates every day, which include willing participant employees in companies across the country.
The crisp question is this; when does a trap placed by an employer become unlawful entrapment?
Entrapment is a somewhat controversial subject, with most decided cases being found in the sphere of criminal law. Key labour judgments do however exist which cast light on the manner in which entrapment cases are to be dealt with in the realm of dismissal law.
The distinction between the approach to entrapment adopted in criminal (lawfulness) and labour (fairness) cases is important.
The Labour Court Judgment in Cape Town City Council v SAMWU & 2 others [C367/98] is considered to have been a landmark Judgment in workplace entrapment cases.
The Judgment refers to the Oxford Dictionary of Law (4th Edition, 1997) as defining ‘entrapment’ to mean “deliberately trapping a person into committing a crime in order to secure their prosecution”. Perhaps most significantly, this points to, in employment terms, an employee being lured into committing an act of misconduct, thereby introducing the concept of ‘inducement’.
Section 252A of the Criminal Procedure Act specifically addresses “traps and undercover operations and the admissibility of evidence so obtained”. The principle factors, paraphrased, are (1) entrapment evidence is admissible if it does not go beyond providing an opportunity to commit misconduct, (2) when considering whether the employer’ conduct goes beyond providing an opportunity to commit misconduct, the prevalence of the misconduct and its seriousness, the availability of other techniques of detection, the degree of persistence and degree of deceit or trickery, will be factors considered.
Further factors which will be assessed are whether, or not, the employer’s conduct included threats, implied or expressed, during the ‘entrapment’ process, and whether there were grounds for reasonable suspicion prior to the trap being set.
In this Judgment, the Court held that “guidelines and parameters no less rigid or strict than those set out in section 252A of the CPA should be applied in the context of the employment relationship”.
This is a rare comparison being drawn between disciplinary procedures and the CPA.
It’s telling that the Judgment does open the door for traps to be set by employers, in specific instances; the Judgment continues “I would be reluctant if not unlikely to hold that a system of trapping (obviously properly constrained) may never be fair in the employment context”.
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