Evidencing the Dismissal

Why do your employees work for you? Be honest. Is it your boundless generosity? The awesome working environment? The character-building challenge of the projects? The invaluable experience? The office manager’s sparkling personality? Donuts on a Friday? The free coffee? All of the above? Let us not sugar-coat the truth. The real reason why employees work is for that all-important pay-cheque they get at the end of each month. And in a handful of cases, there are some employees who wouldn’t turn their noses up at the opportunity to tweak their take-home if they thought they could get away with it. Such an action may not be the wisest though, because dismissal may swiftly follow.

One such employee found himself being relieved of his job when his tinkering with the payroll caused him to earn a little undeserved extra on his salary.

Unsurprisingly, when he received his marching orders the employee wasn’t too impressed with the turn of events. So he turned to the CCMA for recourse, baldly denying his misdeeds. The CCMA considered the evidence and decided that the employee had merely made an innocent mistake on the payroll spreadsheet. Dismissal was deemed too harsh a punishment, and so the CCMA ordered that the employee be re-instated.

The employer, however, was not altogether keen on taking him back. They appealed to the Labour Court. The Labour Court found that the employer had not been able to prove that it was indeed the employee who had caused the overpayment. At least six other staff members were given access to the spreadsheet and any one of them could have made an erroneous change. The CCMA’s re-instatement order was therefore upheld. Next stop: the Labour Appeal Court.

You see, the problem that the employer was experiencing in making the charge stick was the lack of solid, irrefutable evidence. There was no “smoking gun”, metaphorically speaking. Fortunately for the employer, the Labour Appeal Court took a more wholistic approach. The court acknowledged that while six staff members had access to the spreadsheet, only two had access to the passwords that would allow changes to be made: the dismissed employee, and his manager. And of all the changes that could have been made in the spreadsheet, it just happened to be an amendment to the formula that affected the employee’s – and only the employee’s – pay cheque. The employee was the only person who stood to gain from this “error”. The most plausible inference that could be drawn under the circumstances was that the employee had intentionally amended the formula on the payroll spreadsheet to increase the amount paid to him. Such an action was a dismissible offence, and accordingly the employer’s dismissal of the employee for dishonesty was substantively fair and upheld.

One of the reasons that the employer in this case succeeded in their appeal was because they had controls in place that restricted employees from accessing or changing information without authorisation.

Employers could learn from this by ensuring that their employment policies are well-documented, with particular emphasis on job descriptions, secrecy requirements and authority levels. Restrict employees’ ability to create, change and/or view important company information to the appropriate authority levels; maintain a proverbial paper-trail; and implement controls to monitor access, particularly to sensitive information such as financial records and payroll information.

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.

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