Employer can't rely on evidence of a 'trap'
EMPLOYERS frequently use the expertise of a private investigator, or the assistance of an employee, to "trap" employees suspected of having committed offences, especially theft.
This tactic is also commonly used by the police to trap perpetrators of crime.
The evidence acquired during the "trapping" is used against the perpetrator in a criminal case in order to obtain a conviction.
The question arises, whether evidence acquired during the trapping can be used against an employee in a disciplinary hearing?
Section 252A of the Criminal Procedure Act regulates the conduct of the police when applying the principle of entrapment.
The section provides the criteria that should be used by the court when determining whether to allow the evidence of the "trap" to be utilised in the criminal trial. The Labour Court has held that it will consider evidence obtained through entrapment.
This is subject to the court carefully scrutinising the evidence obtained. The court has also provided that section 252A of the Criminal Procedure Act, although a criminal law standard, should be applied as guidelines to be taken into account in labour law.
The court will have considered various issues when evaluating whether the evidence should be allowed, such as:
- The conduct of thetrapping agent;
- Did the trapping agent merely provide an opportunity for the misconduct to be performed;
- Type of inducement used;
- The degree of deceit;
- Reward offered;
- Whether any threats were made.
The court will also consider whether an average employee in the same position as the dismissed employee would have been induced into committing the misconduct.
Although the evidence obtained by the employer is admissible, the employer cannot merely rely on those facts provided by the investigator to sanction a dismissal.
Before using a trap an employer should obtain advice, and an employee who has been trapped would also be well advised to obtain advice in relation to his rights.
- Modise is chairman of Eversheds and Khoza a candidate attorney