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MISCONDUCT - UNAUTHORISED POSSESSION OF COMPANY PROPERTY OR THEFT (MISAPPROPRIATION)

Often, when the employer cannot prove the intention to permanently deprive ownership, the charge of unauthorised possession is used rather than charging an employee with theft.


Theft is sometimes difficult to prove, and the alternate charge of unauthorised possession of company property should then be considered or used as an alternative charge. The reason for this is that a charge of theft requires that you prove that the thief had the intention to permanently deprive the employer of ownership. It is not always easy to prove the intent.


Every employer will probably, at some stage or another, be faced with theft in its workplace. Due to the fact that theft is a dishonesty offence, we dismiss those employees guilty of theft, no matter the value of the item stolen, and in most cases, factors in mitigation were not enough to tip the scale away from dismissal, as honesty goes to the heart of the relationship and theft or dishonesty destroys the trust relationship between employers and employees.


In cases of unauthorised absence and or theft, initiators in disciplinary enquiries must present sufficient evidence that there is an irretrievable breakdown in the trust relationship between the employer and employee, that if there are mitigating circumstances present, like years of service and a clean disciplinary record, why those mitigating circumstances would or could not result in a lesser sanction than dismissal.


What to look for:

Establish the identity of the property. Establish that it is company property. Take possession of it, if possible, and lock it away. Establish (if possible), that the employee was aware that they were in possession of the property. Establish that such possession was unlawful. Establish that the employee did not have the authority to be in possession of that property. Try and find evidence to show that the unauthorised possession was planned and premeditated.


Take statements from any witnesses – such as the person who found the property in the possession of the employee.


Make sure that the person has entered the incident in the occurrence book. Make a copy of the occurrence book entry. Also, check the employee’s previous record for previous similar offences or other acts of misconduct.


What must the investigator prove at the disciplinary enquiry?

Where the property had already been removed from the premises, show that such removal was intentional (the onus of proof lies with the employer) and that it was unlawful and without authority.


The longer the property is unlawfully away from the premises, the easier it is to prove that the employee had no intention of returning it to the employer, thus establishing that its removal was intentional.


Show that the offender was aware that they were not allowed to be in possession of the removed company property without the proper written authority. If you can establish that the unauthorised removal or unauthorised possession was premeditated and planned, then produce your evidence to that effect. Basically, the only thing that needs to be proved is that the accused was found in possession of the company property and that their possession of it was unlawful and not authorised.


You do not have to prove what they intended to do with it. You only have to show that, where possible, it was premeditated, and that they were aware that they were not permitted to remove or be in possession of company property without authority, and that they were in possession of the property without authority, or they did unlawfully without authority remove it from the premises.


You only have to prove that the employee did not have the necessary authorisation that enabled them to be lawfully in possession of the property in question.


Emphasize that for employees to take company property without the proper authorised compromises the very necessary element of trust in the employment relationship and renders the continuance of that employment relationship intolerable.




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