Unfortunately, crime being what it is in South Africa, most employers are likely at some stage or other to have problems relating to dishonesty, theft and shrinkage. Certain retailers have even gone so far as to establish policies to the effect that if shrinkage in an outlet goes above a certain level, the whole staff of the outlet is dismissed. This could be on the basis of poor performance, team misconduct or even for operational requirements.
Employers who employ driver sales persons who operate on a cash sales basis are particularly vulnerable to theft. Syndicates of employees, operating within the business, often assisted by third parties who may or may not be employed by customers, collude to steal and sell products for personal gain.
Usually the driver has one or two helpers who load the products, ride with him and carry the merchandise into the customer’s premises. What often happens is that the delivery team has accomplices in the manufacturing unit, in the warehouse or even amongst the customer’s staff.
If the employer manufactures the products, syndicates might arrange to steal goods from production areas and contrive for these ‘extra products’ to be sold by the delivery personnel. Often security is involved and the proceeds from these illicit sales are split between the parties. Sometimes deliveries are made and invoices signed for, but no goods actually make their way into the customer’s warehouse.
To safeguard against this, employers introduce controls requiring products to be accounted for at each stage of the manufacturing process. Goods leaving the premises are either weighed or counted and checked by security personnel. In spite of all this and in spite of security being out-sourced to security companies who regularly change their guards, the thefts continue.
One client who had a large volume of stock missing appointed a new manager to investigate. After checking the documentation, he found that the production records did not tally with the gate releases. He arranged for the security personnel to be changed and for trusted managers to do spot checks on the trucks. It was not long before a driver was found with extra products on his vehicle. He was dismissed but the thefts continued. Other drivers were caught with extra products and were dismissed. In most cases, the drivers admitted guilt and left without a word. The thefts continued. Each time it was the driver who was dismissed but not the helpers – they claimed that they didn’t know anything – they just loaded what the driver told them to!
Things came to a head however, when a driver who was caught with extra products on his vehicle claimed he did not know they were there. He was asked to do a polygraph (lie detector) test, to which he readily agreed. He passed! That set a cat amongst the pigeons! How did the goods get onto the truck?
Investigations of previous cases revealed that one particular helper (we’ll call him Lightfingers) had been on the route with two drivers who had been dismissed. The manager contacted these drivers and was not surprised to learn that it had been Lightfingers who had first approached the driver to participate in the scam. He had arranged for extra goods to be made available and he had hidden within the legitimate order on the truck. The driver was asked if he would testify and he agreed.
Then as luck would have it, a truck was stopped by security and found to have extra product. And guess what? Lightfingers was the helper on the truck. During the investigation the driver admitted that he knew there were extra products on the truck.
He explained that Lightfingers had arranged to get the product from ‘some guys in production’ (the driver could not name them). They planned to sell the product and for the money to be split amongst them (70% to Lightfingers!).
At the disciplinary enquiries which followed, the driver admitted guilt and also testified against Lightfingers. He was dismissed but criminal charges were not laid against him. The previously dismissed driver also testified against Lightfingers, who protested innocence claiming that he knew nothing. He just followed the instructions of the driver. He was asked if he was prepared to do a polygraph. He wasn’t!
The chairperson was faced with a decision as to which version he should believe – that of Lightfingers who claimed he knew nothing or the testimony of the two drivers, supported by documentary evidence. Not difficult, Lightfingers was dismissed! He immediately referred the dismissal to the CCMA claiming that the employer had wrongly charged him instead of the driver and had not proved that he was guilty of anything.
What was interesting was that by the time the case went to arbitration, there had been a significant drop in shrinkage. In this case, not surprisingly, the arbitrator found in favour of the employer, but in far too many cases, the bad guy walks free – usually because management mishandle the case. Accomplices who claim they didn’t know when things are being stolen around them should be put to the test. They should not walk free because at the very least, they are failing in their common law duty to act in good faith and in their employer’s best interest!
In handling cases like this a few pointers which disciplinary initiators and chairpersons need to be aware of are as follows:-
- Normally an accomplice has reason to lie – to cover up his own wrong doing or that of others. Therefore a basic rule of evidence is that the evidence of an accomplice must be treated with circumspect. In Lightfingers’s case however, both drivers had already been dismissed, so they had little to gain by testifying. Lightfingers could not motivate any reason as to why they should have led false evidence against him. Remember, always ask what reason a witness might have to bring false evidence against the accused.
- The evidence of a single witness should only be accepted if it is clear and consistent in every respect. Cases where it is one person’s word versus another are difficult to decide. One should always look to see whether there is any corroboratory evidence. Although polygraph tests are frowned upon by some commissioners, they are a useful tool for proving a person’s innocence (e.g. the driver who had extra product placed on his vehicle without his knowledge.
- A polygraph test should only be used as corroboratory evidence. For example where one has the direct evidence of a single witness then both parties may be asked to do a polygraph. Under no circumstances should the results of a polygraph test be used as the only evidence in making a finding.
- The employer has a duty to prove that theft has actually taken place. Records such as delivery notes, gate releases and, more particularly, production records which show a drop in shrinkage after employees have been dismissed should be kept and presented as corroboratory evidence.
- Remember the test of guilt in a disciplinary enquiry is the ‘balance of probability’. Some managers are over-cautious when dealing with theft cases. The criteria in law for determining guilt are beyond reasonable doubt and the balance of probabilities. Proving guilt beyond reasonable is more onerous (difficult) and is used in the criminal court. Where a judge has a reason to doubt whether an accused is guilty, he must be given the benefit of the doubt. For example, he might not have done it (the crime) because ………… (the reason), therefore he must be given the benefit of the doubt.
In a disciplinary enquiry however, the chairperson need only to listen to both versions and decide ‘on the balance of probability’ which is the most plausible (believable) and probable version using common sense and logic.
- There is no substitute for proper investigation and careful case preparation. In theft cases, especially where the employer suspects that a syndicate is involved, the employer must proceed cautiously, making sure that all available evidence is collected and presented. The worst thing to do is to go off ‘half–cocked’ as this will just alert the thieves who will bide their time before stealing again and/or think of more ingenious ways to beat the system .
South Africa needs to put a stop to crime and each of us has a role to play. We need to adopt a zero tolerance of this sort of thing and where it is possible, employees caught in this type of misconduct should also be criminally prosecuted.