As an employer, you may encounter challenging scenarios involving employee misconduct within your workplace. It's imperative to understand that certain acts of misconduct not only breach company disciplinary codes but also constitute criminal offences under South African law.
The Prevention and Combating of Corrupt Activities Act 12 of 2004 places a legal duty on employers to report specific offences to law enforcement authorities. Failure to fulfil this obligation can render employers liable for criminal charges.
Under Section 34 of the aforementioned Act, employers are mandated to report common law offences, such as theft, fraud, extortion, forgery, and uttering of forged documents, involving amounts exceeding R100 000.00 (One hundred thousand rand). Additionally, statutory offences outlined in Chapter 2 of the Act, including corruption, require reporting by employers.
It's crucial to note that while employers have discretion in reporting criminal offences, certain serious offences must be reported in terms of Section 34(1), leaving little to no room for choice.
In cases where employees are implicated in criminal activities, employers often face the dilemma of whether to request their immediate resignation on mutual terms or initiate disciplinary proceedings. It's essential for employers to engage in open and transparent discussions with employees, presenting them with the option to voluntarily resign in lieu of impending disciplinary and criminal actions. However, this decision must be communicated respectfully and without coercion, ensuring the voluntary nature of the resignation.
While contentious, depending on the circumstances, this approach finds precedent in case law such as Nokeng TSA Taemane Local Municipality // Louw No and Others (JA7/16) [2018] ZALAC 37. In this case, an employee facing allegations of financial misconduct was given the choice to resign or face criminal charges. The Labour Appeal Court ruled in favour of the employer, affirming the right to reserve criminal charges while allowing voluntary resignation.
Critically, the decision to resign should remain voluntary for the employee. It's essential for employers to document such requests in writing, ensuring clarity and transparency. However, employers must tread carefully to avoid creating an intolerable work environment or engaging in coercion tactics, as the aforementioned case law alleged.
Furthermore, it's important to recognise that the disciplinary and criminal processes operate independently of each other. While both processes may run concurrently, and evidence from one process may inform the other, each process follows distinct standards of proof. In disciplinary hearings, guilt is determined based on a balance of probabilities, whereas criminal courts require proof beyond a reasonable doubt.
The option to resign or face criminal charges presents a challenging dilemma for employers. While employers may request employees to resign in circumstances involving criminal offences, it's imperative to approach such discussions with sensitivity and clarity. Documenting such requests in writing and ensuring the voluntary nature of resignations are essential practices.
While permissible and within legal bounds, employers must exercise discretion and fairness in their approach. As difficult as it may be, especially given the severe nature of the (criminal) misconduct committed, employers must do their best to objectively navigate these challenges ethically and legally – upholding accountability and integrity in the workplace while maintaining a standard of respect for the rights of employees, despite the nature of the misconduct.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
