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Unauthorised use of company property for private use, dismissible or not?

Article written by Gerhard Olivier (SEESA)

Using company property by an employee is a direct result of the existence of an employment relationship. Company property should therefore be used for work-related purposes only.

To determine whether the unauthorised use of company property for private use by an employee is dismissible, one has to look at the following:

Is there a policy in the workplace prohibiting the unauthorised use of company property? Alternatively, is there is a clear rule prohibiting such use? Further, if such policy and/or rule was applied consistently with dismissal as sanction.

Policy in the workplace

This means that the rule forms part of the employer’s disciplinary code and indicates dismissal as the sanction for contravention of the policy. The content and scope of the policy must be clear, alternatively;

A clear rule in the workplace

Rules in the workplace set an obligation on employees to sustain a certain standard that they should not deviate from.  

In terms of Item 7 of the Codes of Good Practise, the employer will need to prove that:

  • There was a clear rule;
  • The rule was contravened;
  • The rule was a valid or reasonable rule or standard;
  • The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
  • The employer has consistently applied the rule or standard; and
  • Dismissing the employee was the appropriate sanction for the contravention of the rule or standard.

The rule does not have to be in writing but must comply with all the above requirements. In Ndlala v Value Truck Rental.[1995] 9 BLLR 138 (IC) it was held that employees who use company vehicles for private purposes might be dismissed if there is a clear rule prohibiting such use.

Examples

Employees may not move or possess property belonging to the employer without permission, whether for an emergency, in good faith or for an unknown reason. This was held in Laser Cleaning Africa v CCMA and Others JR 1693/16 (LC) – not reportable. The whole purpose of obtaining permission before using company property is to ensure that an employee doesn’t place himself under suspicion and that he may use the property for their work.

Where an employee removes the employer’s property from the place that it is regularly or usually kept, the employee makes himself guilty of misconduct that is enough to warrant dismissal. This was confirmed in Rainbow Farms (Pty) Ltd v CCMA and Others (2011) 5 BLLR 451 (LAC).

In Continental Oil Mills (Pty) Ltd v Singh NO and Others (2013) 34 ILJ 2573 (LC), the court held that: “Generically, theft and unauthorised possession belong to the same genus of dishonesty. Both are premised on an employee’s conduct who deprives the employee of the ownership of goods. While theft has an element of intention, an employer is not ‘required to prove charges of theft with the rigour expected of the state in criminal prosecutions – proof on a balance of probabilities suffices.”

In Aquarius Platinum (SA)(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA96/2018) [2020] ZALAC 23 (18 May 2020), Sutherland JA held that: “The frequent resort to the lesser offence of being in ‘unauthorised possession’ of the employer’s property, an act of misconduct listed in many disciplinary codes, caters for cases where a thieving intention is suspected and requires of employees to ensure that they do not place themselves under suspicion, relieving an employer from having to prove a specific intent.”

From the case law, one can see there is a clear link in the seriousness between dishonesty and unauthorised use of company property for private use, which may warrant a sanction of dismissal.

Unauthorised use of company property may be dismissible if there is a policy or clear rule in the workplace prohibiting such private use and the rule/policy applied consistently. 

However, it is important to consider the merits of each case individually and not follow a one shoe fits all approach.

Contact your nearest SEESA to assist you with any queries regarding employee dismissal. 

SEESA is a proud Partner of the NSBC

About The Author

Gerhard Olivier is a legal advisor in the Labour & BEE department at SEESA’s Bethlehem office. He obtained his LLB degree in 2015 from the North West University of Potchefstroom and completed his articles in Bethlehem in 2017

Resources

  • Codes of Good Practise Item 7;
  • Ndlala v Value Truck Rental (1995) 9 BLLR 138 (IC);
  • Rainbow Farms (Pty) Ltd v CCMA and Others (2011) 5 BLLR 451 (LAC);
  • Laser Cleaning Africa v CCMA and Others (2016) JR 1693/16 (LC);
  • Continental Oil Mills (Pty) Ltd v Singh NO and Others (2013) 34 ILJ 2573 (LC);
  • Aquarius Platinum (SA)(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA96/2018) [2020] ZALAC 23 (18 May 2020).