“I Was Going to Put it Back” – Unauthorized use of Company property and Theft. Is there a difference?

Access to your employer’s property, such as power tools in the workshop or stationary in the office, is a direct result of the existence of an employment relationship. The main purpose of having authorised access to the employer’s property is to further the interest of the employer and allowing the employees to perform their duties effectively. Unfortunately many employees take the access to employer’s property for granted and have a false sense of entitlement.

The permission to use the employer’s property needs to be regulated to minimise the employer’s risks, such as theft or replacement of the property. Employers, in light of this, developed mechanisms to manage the relationship between employees and the employer/company property, through policies. These policies regulates the use and possession of property, expected conduct prior and during use or possession of the property and penalties, should employees breach the policy. In some instances, mostly with smaller companies or entities, there is no policy.

MISA is faced with numerous questions regarding the possession of employer’s property, especially in the absence of a policy regulating the relationship between the employer’s property and employees. Questions such as whether the unauthorized use of your employer’s property is tantamount to theft? Dealing with this issue, the starting point is to define the two concepts and to compare their similarities and differences.

• Theft

Section 34 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (PCCA) defines theft as the ‘unlawful and intentional appropriation of moveable corporeal property that belongs to another with intention to deprive the owner permanently of the property.’ The key words are unlawful, intentional appropriation and intention to deprive.

The Labour Appeal Court, in the matter between Central News Agency v CCAWUSA & another (1991) 12 ILJ 340 (LAC), confirmed that it is an implied condition of any and every employment relationship that an employee will not steal from the employer; and that the employer has the right to trust his employee to not steal from him. The trust between the Employer and Employee is the foundation or crux of the employer-employee relationship. A breach of this trust, through an act of theft, render the continued existence of the employment relationship indefensible.

• Unauthorised Use

It goes without saying that ‘unauthorised’ is the opposite of ‘authorised’. The definitions of ‘authorised’ is ‘sanctioned with authority’. That is, you do have authority; you do have approval; you do have permission! The opposite is that you do not have permission; you do not have authority; you do not have the approval. Unauthorised use has been deemed to constitute a form of theft.

The Industrial Court held in Ndlala v Value Truck Rental (1995) 9 BLLR 138 (IC), that in the absence of an agreement with your employer, using company property for private commitments may result in your dismissal when a workplace rule prohibits the unauthorised use or possession. 

Unauthorised use of company property does however differ from theft in the sense that it is not a requirement to show that an employee has actually taken possession of the company’s property or deprived the employer of its property. In amplification, the decision of the Labour Appeal Court in the case of Rainbow Farms (Pty) Ltd v CCMA and Another (D1009/2000) [2001] ZALC 29 (26 February 2001) extended the definition of theft by including the act of removing the employer’s property from the place that it is usually kept. Such conduct was held to be sufficient to constitute theft. In such circumstances, the misconduct is usually enough to warrant dismissal.

The Intersection

The Labour Court was faced with a decision as to whether the conduct of the employee was tantamount to theft or the unauthorised use of property in Continental Oil Mill (Pty) Ltd v Singh NO and Others (2013) 34 ILJ 2573 (LC) (24 January 2013). The court held that theft and unauthorised possession stem from the same category of dishonest conduct.  Both theft and unauthorised use of company property can warrant the same sanction of dismissal.

Conclusion

The maintenance of the trust relationship between the employer and employee is of paramount importance in continuing the relationship and every reasonable endeavour should be made to maintain that trust.

It is important for an employee to respect the property of his/her employer and adhere to regulations regarding the use of company property. Unauthorised use may be viewed in the same light and gravity as theft. It is important for an employee to take the necessary steps to ensure that he/she has the necessary permission/authority to make use or take possession of any property belonging to the employer.

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