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Labour Matters Davies Ndumiso Sibanda
Many employers struggle with investigating misconduct and are not sure whether to set traps or not and are also not sure whether setting traps for employees is legal. In the majority of cases employers who are losing stock, materials and equipment will engage under cover investigators, use hidden cameras and many other methods to establish the source of their problems.
The use of trapping and entrapment has generally not been used by many employers as they assume it is difficult to find an employee guilty due to what they view as complex legal process and are also not sure of what is legal and what is illegal.

Trapping an employee is legal and what is illegal is entrapment. Trapping an employee is where for example an employer who is suffering serious stock shrinkage hires an undercover agent to work with employees in the warehouse observing what is happening or setting up hidden cameras to monitor activities in the warehouse.

The employer’s action is driven by reasonable suspicion there is theft. If employees in the warehouse are caught stealing due to the work of the undercover agent or cameras and are dismissed, the legal issue is that whether the employees were induced by the undercover agent or camera to steal. If there is no evidence of undue inducement then the trap worked and the employees are likely to be found guilty and dismissed.

In a South African case, Mbuli versus Spatan Wiremaker (2004, 5 BALR598) an employer who was losing wire stocks requested a worker to ask a colleague to sell him wire, the colleague sold him wire from the employers stock at half the price. The employee was taken through the disciplinary process and dismissed. The employee complained that he had been entrapped illegally because the employer had set him up.

At arbitration the action of employer was found to be fair as the action of the employer was driven by serious stock shrinkage, the trap had been set due to reasonable suspicion against the employee and the employee was not induced to commit the crime but had merely been given the opportunity to commit the offence.

On the other hand entrapment is illegal and involves luring or inducing an employee into committing an act of misconduct which the employee would otherwise not have committed had it not been for the actions of the employer.

For example where an employer suspects an employee drinks alcohol at work and hires an undercover agent who brings beer to the workplace and offers the worker the beer to drink during working hours at some secluded office used by the undercover agent.

Such action by the employer is clearly entrapment and is illegal because there is evidence that the employee would not have drunk the alcohol had the undercover agent not provided a trap. The employee will not be found guilty because the employer is the one who engineered the situation under which the worker took alcohol.

In conclusion the process of trapping an employee needs to be handled with the guidance of experts and as such employers need to seek expert guidance to avoid being accused of entrapment.

Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235