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Those Criminal Employees

25 June 2013

Routledge Modise

More and more employees are embarking on schemes against their employers that involve large amounts of monies being stolen. In many instances employers are unable and/or unwilling to lay criminal charges against their employees, due to the time and commitment required in seeing such prosecutions to an end. Many employers are of the view that the effort required is not worthwhile. Employees often then get away with their criminal conduct pursuant to their dismissal.

Employers should bear in mind their rights to hold onto pension benefits and to seek to recover damages caused by employees from pension benefits. This can be done in terms of the Pension Funds Act, pending criminal and/or civil litigation proceedings. Employers able to prove damages suffered at the hands of employees, as contemplated by the Pension Funds Act, are ultimately able to recover the damages from the pension benefits. We have successfully assisted many clients in this regard. The question of recoveries has been dealt with in previous publications.

There is also the obligation of an employer to report a corrupt transaction in excess of R100 000 in terms of the Prevention and Combatting of Corrupt Activities Act, also addressed in previous publications.

Turning to actual criminal prosecutions on the other hand, we are also pleased to report our clients' recent successes in this regard. It has been our experience that employees managed to put in place sophisticated schemes by capitalising on a weakness in the employer's system. In many instances, despite the employers having a dedicated team to ensure that their systems are not breached, those employees who wish to manipulate the system to their own benefit are savvy enough to do so.

It is common knowledge that in recent years, there has been a marked increase in theft of large amounts of monies by employees. Often the employer will not pursue the criminal aspect of the offence and will merely ensure that the employee is dismissed and/or pursue a recovery from the pension benefits. In our experience, a tough stance against criminal action assists to deter similar conduct in future by remaining employees. The message that a fellow employee has been arrested, charged and successfully prosecuted is "priceless".

While the criminal justice system has many serious shortcomings, the criminal matters in which we have been involved on behalf of clients have demonstrated that with the necessary commitment an employer is able to ensure some form of justice through the criminal system. Very recently we ensured that an employee who had stolen over R500 000 from his employer was found guilty and imprisoned for a period of seven years! While the journey was arduous in some respects, as it required that our client through our offices make constant contact with the senior prosecutor, present the necessary evidence and affidavits and assist the state in successfully ensuring the final conviction, the end result was gratifying to the employer and also sent a strong message to its workforce that "crime does not pay". The stolen money was also recovered.

Employers should consider all their options when faced with criminal conduct by employees that is not limited to only securing a dismissal, but also spans across to recovering damages from the pension benefits and where necessary and possible to pursue a criminal conviction.

The team

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