HR Pulse

The crucial difference between “trapping” and “entrapment”

Theft in South Africa poses a huge danger to employers - from employees ‘borrowing’ the company’s scissors or pen, to removing large quantities of the company’s product to resell. So it is no wonder that employers will try anything to get the theft to stop.

And sometimes that anything includes entrapment.

Employers use a variety of methods to prove an employee’s guilt, some of which are neither recommended nor legal. Methods that are legitimate and potentially effective include:

• Carrying out a thorough investigation to gather relevant facts;
  
  
• Using documents as proof;
  
  
• Backing up documentary proof with audio evidence and video footage;
  
  
• Polygraph test results;
  
  
• Calling witnesses to give truthful and relevant testimonies; and
  
  
• Entrapping employees who you are suspicious of.

Illegal and dangerous methods:

• Altering documents, statements and taped evidence;
  
  
• Encouraging witnesses to lie;
  
  
• Coercing the accused employee into confessing; and
  
  
• Entrapping the suspected employee illegally.

So what is legal and what is not?

There is confusion between how you can legally entrap an employee and illegal entrapment:

• You cannot create a situation where an employee is placed under pressure, coerced or encouraged to commit misconduct. The element of inducement is critical and you must not overstep the boundary by actively encouraging an employee to commit misconduct when the employee would not have ordinarily done so. 
  
  
• Subtle factors distinguish between legal trapping and illegal entrapment. Because of the technical nature of these distinctions, do not use traps until you fully understand that the line between these two.  

For trapping and interception methods to be admissible, these need to have been conducted in a fair manner.

If you get this wrong, you could lose your case. So make sure you understand what your boundaries are! To find out what these boundaries are, attend Global Business Solutions’ disciplinary enquiry workshop.  Lia Marus, editor from HR Pulse, is also going to be there.

Author: Jonathan is the CEO of Global Business Solutions and is a nationally acclaimed consultant, lecturer, attorney and author on matters relating to Labour Law, Industrial Relations and Broad-Based Black Economic Empowerment. Jonathan is also an Arbitration and Mediation panelist, accredited Commissioner of the Commission for Conciliation, Mediation and Arbitration, member of Tokiso dispute settlement panel