Dealing with theft

Timbers when he was dismissed on the basis that he had willfully misused company property and also connived to steal 20 reject poles, the property of the employer and in its lawful custody. Chiropa was employed as a telelogger operator and his main duty was to load trucks with timber and poles and sometimes firewood.
He derived his authority to carry out duties from his supervisor. It is alleged that he contravened Section 3.3.5 (C) and Section 3.4.4 respectively of the Border Timbers Employment Code of Conduct.
The offences are clearly spelt out in the following words.
“1) 3.3.3 (C): Willful misuse of company property; an act whereby an employee willfully or deliberately misuses company property.
2) 3.4.4: Stealing or theft of company property/premises and subject to local agreements or theft on neighbouring properties.”
In particular, it is alleged that he used the telelogger machine without authority to load 20 reject poles into a lorry, which was intercepted at the gate. The said property had no authorisation.
Further to that, it is alleged that he had connived with the truck driver and the guard to steal the 20 poles in question. Chiropa was thus brought before disciplinary committees in terms of the Border Timbers Code of Conduct where these charges were put to him starting with the hearing, then the appeal.
After dismissal, he then appealed to the Labour Court.
Starting with the first hearing, Chiropa pleaded guilty to misuse of company property but maintained a not guilty plea for the theft charge.
That not withstanding all the bodies before who he appeared still found him guilty of both offences and ordered his summary dismissal. It is respect of the theft charge in particular that he came before the Labour Court applying that it overturns that decision to find him guilty of theft and to set aside the dismissal penalty. Chiropa argued in the alternative that, if the court was persuaded that he was properly found guilty, it should, however, interfere with the sentence by ordering a less severe penalty in terms of the Code of Conduct be returned.
Chiropa’s grounds of appeal can be summarised as being only three even though on the face of the notice of appeal, they appeared to be five.
The first ground that he raises is that, the Border Timbers Code of Conduct was ultra vires Section 101 1(a) – 1(c) of the Labour Relations Amendment Act No 17 of 2002.
The second ground was that the disciplinary committee erred in its analysis of the evidence before it by concluding that he had connived to steal with the guard and the driver. On the same point, Chiropa cites the irregularities that were inherent within the practice of how the truck would leave with property from the premises.
The third ground was that the disciplinary committee erred in imposing the maximum penalty of dismissal in a case where a lesser penalty would have sufficed.
On the other hand, Border Timbers argued that there was no misdirection on its part.
It argued that in view of Chiropa’s admission of guilt and the facts surrounding the case, findings that were made were appropriate and the penalty imposed was within limits for conduct in similar cases.
Turning to the main issues at stake, it is common cause that Chiropa throughout admitted to misuse of company property.
The only issue therefore that remained for decision was whether the decision to find him guilty of theft was sustainable at law and also whether the penalty complained of indeed did not meet justice of the case.
It is worth pointing out that as the proceedings went on, the ground to do with the unconstitutionality of the Border Timbers Code of Conduct was abandoned by Chiropa.
Besides, Border Timbers did not address it at all, hence it could be taken that both parties were thus in agreement that there was nothing amiss about the code so the court just let the matter rest at that.
In that light, the first ground of appeal therefore deserved no further comment as it was abandoned.
The same sentiments go for the use of the telelogger without authority. The willfulness or otherwise of its use was resolved by Chiropa’s admission that it was unlawful to use it without his superior’s authority.
What remains mainly to be decided on is the issue about the findings on the theft charge.
A record of all proceedings showed that the panelists concluded that Chiropa connived with the driver and the guard to steal the poles. The basis upon which this finding was made was that there was no coherent story from any of the implicated three that demonstrated that the removal of the poles was not above board.
Chiropa maintained that he was asked by the driver to load the poles and that he also got confidence to do so when the guard told him it was well for him to load the poles. The conclusion that was thus reached by all the committees was that since Chiropa confessed to loading without his supervisor’s authority and say got clearance from other non-designated authorities like the driver and the guard, it therefore meant that he was party to the stealing of the property in question.
It is difficult to understand how such a conclusion could have been arrived at taking into account the fact that the records of proceedings were all silent on what the driver said in reaction to the averment that he was the one who told Chiropa to load the poles.
At the first hearing, Chiropa’s colleague confirmed that the driver asked him to ferry the poles and upon asking the guard, was given the go ahead.
When the guard was, however, called to give evidence, he denied authorising Chiropa to load the poles and suggested that he was busy writing in the kitchen.
In the result, what remained was Chiropa’s word against the guard’s word.
Theft is an offence which requires clear intention to be proven and the facts in this case do not seem at all to give rise to the inference that the only conclusion that one could arrive at was that Chiropa stole with the guard and driver.
In the result, Labour Court president Ms Lilian Kudya was of the view that there was no case of theft proven.
One could not safely proceed on the basis that the offence that Chiropa admitted to having committed had an adequate penalty provided form.
That distinguished this case from the cases cited by Border Timbers where only dismissal was the penalty befitting the infraction.
Ms Kudya then ordered that the verdict of guilt of theft be set aside and the verdict of guilty to willful misuse of property be upheld.
In place of the dismissal penalty, she imposed a severe warning for four months as provided for in the relevant code.