It should go without saying, that employees have an absolute employment obligation to be honest at all times, in the course of their employment with an employer.  This even extends to employees furthermore having an obligation to expose the dishonest acts of their colleagues, which they have knowledge of, and the extent that it can proved that they turned a blind eye to a colleague’s dishonesty, that employee is guilty of so-called derivative misconduct.

Dishonesty also goes by many euphemisms.  In disciplinary hearings, employees occasionally state that they were ‘borrowing” the item, with every intention of returning it to the employer, or that they removed the item inadvertently.  In a recent case, the employees adopted yet another euphemism, namely that they had not in fact stolen the items, but had, improbable as it sounds, taken them without permission.

This was the case in NASECGWU obo Seleka, J & 1 other v Lime Acres Family Store (CCMA Arbitration Award number NC1400-15).

The allegation levelled against the two employees was, quite simply, “stealing pies from the” employer.

According to the employer, a manager “investigated the matter where the Applicants were charged with stealing pies from the Respondent. The Applicants were busy baking pies and they appeared in the video footage stealing pies. The Applicants were called in for questioning and they were given a chance to tell the truth before they were shown the video footage, but they denied stealing.  Only after they saw the video camera, they admitted to have eaten the pies and indicated that they were hungry. The Respondent indicated that the Applicants were dishonest and their work was to bake pies, their dishonesty broke the trust relationship. The Applicants did not ask permission to eat and the video showed that they have been stealing on a daily basis from 25 to 28 April 2015. The video could only be reversed to 25 April 2015, the Respondent indicated that there are possibilities that the theft was happening even prior to the dates in question”.

It was further testified to by the employer that the employees pleaded guilty.  At the hearing, it was acknowledged that “during the interviews the Applicants were told that they have a responsibility of reporting theft when they witness it at the workplace.  They knew that theft was a serious offence. He indicated that taking something which belongs to someone else without the person being aware of it and using it is theft and that is what the Applicants did”.

However, the employees submitted that they were unfairly dismissed for theft.  On the contrary, and somewhat absurdly they “agreed that they took the (employer’s) pies without asking and ate them … but argued that their actions were not that of theft”.

It gets more interesting.  They then went on to testify that “they pleaded guilty at the disciplinary hearing for taking the (employer’s) property without consent but not for theft”. But the Applicant’s had further, even more absurd testimony.  They continued that “theft is when someone take someone else’s property and leave the premises with it. They did not leave the premises, but ate the pies inside the premises and therefore, they were not guilty of theft”.

SAs far as the company rule prohibiting theft was concerned, they stated that “there was no rule at the workplace about theft and that the code of conduct is available at the workplace, but is placed at a high place by the wall and they could not read it”, yet continued that “since this was a first offence, dismissal was harsh and a written warning would have been fair”.

Unsurprisingly, the Commissioner held that “It is the Applicant’s case that they took the Respondent’s goods without permission and consumed the goods. It is also the Applicant’s testimony that their intention for taking the pies was to consume them. The Applicants acknowledged in their evidence that what they did was wrong, they were aware that their conduct was wrongful. By taking the pies without permission and consuming them, the Applicants permanently deprived the Respondent from the use and possession of its property, which are the pies. It is clear that the charge sheet indicated theft as a charge, the Applicants in their evidence confirmed that they pleaded guilty. It is unreasonable for the Applicants to say that they pleaded guilty for taking the goods without permission, but not for theft while they admitted to have intended to consume the Respondents goods”.

In conclusion, it was held that “From the evidence given at the arbitration, it is clear that the Applicants did not take the Respondent’s goods only for one day, but this act happened consistently over a period of a week.  During arbitration, the Applicants did not show any sign of remorse and insisted that they had a reason for taking the Respondent’s goods in that they were hungry.  The action of eating the Respondents? pies without permission, while in a position of trust is sufficient to constitute theft. The action of the Applicants had an element of dishonesty for which dismissal is an appropriate sanction”.