Charging employees with “time theft” might be problematic

SA Metal Group dismissed a cleaner when she was found guilty of “theft of company time” for having spent time ostensibly cleaning a kitchen that no one was allowed to use after the employer had implemented COVID-19 rules.

A CCMA commissioner found on 4 May 2021 that the respondent had failed to prove that the applicant had stolen company time, and issued an Award directing the respondent to retrospectively reinstate her.

Employers seldom rely on the allegation of “time theft”. When employees conduct themselves in such a way that they receive payment for hours not worked, the allegations are normally phrased in a different way.

A typical example of an instance where such “time theft” occurs, is the abuse of the clock card system. In the matter of Kloof Gold Mine A Division of Goldfields Mining SA (Pty) Ltd And CCMA and others (6 June 2006) the employees were charged with fraud and dismissed.

The Court held that the purpose of a clock card was to confirm that the employees were underground in the mine, busy working and therefore entitled to be paid for time worked.

The misconduct arose when a single employee clocked in everyone, including two miners who had not yet arrived.  An investigation showed that at the time the others were sitting in the supervisor’s office – no one had started working underground. They were dismissed for having breached the clock card rules. The Labour Court upheld the dismissals.

In the matter of Hulamin Limited v Metal and Engineering Industries Bargaining Council and Others (D772/10) [27 March 2014], the employee was dismissed after she conceded that she had been leaving the workplace and company premises without permission and when she did so she was paid for the time not worked.

The CCMA Commissioner rejected the employer’s contention that the employee was guilty of “time fraud”. The Court agreed that the facts did not support the employer’s contention:

[41]… As I understand the Employer’s arguments, its conception of “time fraud” is broad enough to include the example of an employee who secretly reads a magazine during time for which she is being paid and is required to work. If that is so, then it surely does not follow that such an employee should, for purposes of sanction, be treated the same as an employee who commits fraud by embezzling millions of rands from his employer.

The Court further held that Charge 2, to which the employee had pleaded guilty, made no reference to the allegation that she had committed “time fraud:

[50.2]   Charge 2 makes no reference to the offence of so-called “time fraud”. Nor does the wording of the charge, either in its original form or as recorded by the appeal chairperson, disclose the elements of fraud or deliberate misrepresentation. It, therefore, does not follow that because the Employee pleaded guilty to and was convicted of charge 2, that she was, therefore guilty of fraud, time fraud or dishonesty.

The Court further emphasised that the employer’s disciplinary code was designed to:

[50.8]  …  penalise an employee who deliberately claims wages or overtime that the employee knows that he or she did not work for; for example: an employee who claims to have worked on a particular Sunday, when in fact he knows that he did not do so. The provision does not, in my view, necessarily penalise (or include within its meaning) an employee who attends work but is unproductive; for example: an employee who spends time at work reading a novel, or, as in the present case, an employee who showers during company time or visits the shops to buy lunch.

In the circumstances the review application failed and the arbitration award retrospectively reinstating the employee was upheld.

The importance of the above decisions are that while the employee may in fact have been guilty of what amounted to “time theft”, the actual allegations should be phrased in different terms depending on the nature of the misconduct.