Resign, Or I'll Have To Report You

• Published date: 01 April 2024
• Subject Matter: Criminal Law, Crime
• Law Firm: Consolidated Employers Organisation
• Author: Carl Ranger

As an employer, you may encounter challenging scenarios involving employee misconduct within your workplace. It's imperative to understand that certain acts of misconduct not only breach company disciplinary codes but also constitute criminal offences under South African law.

The Prevention and Combating of Corrupt Activities Act 12 of 2004 places a legal duty on employers to report specific offences to law enforcement authorities. Failure to fulfil this obligation can render employers liable for criminal charges.

Under Section 34 of the aforementioned Act, employers are mandated to report common law offences, such as theft, fraud, extortion, forgery, and uttering of forged documents, involving amounts exceeding R100 000.00 (One hundred thousand rand). Additionally, statutory offences outlined in Chapter 2 of the Act, including corruption, require reporting by employers.

It's crucial to note that while employers have discretion in reporting criminal offences, certain serious offences must be reported in terms of Section 34(1), leaving little to no room for choice.

In cases where employees are implicated in criminal activities, employers often face the dilemma of whether to request their immediate resignation on mutual terms or initiate disciplinary proceedings. It's essential for employers to engage in open and transparent discussions with employees, presenting them with the option to voluntarily resign in lieu of impending disciplinary and criminal actions. However, this decision must be communicated respectfully and without coercion, ensuring the voluntary nature of the resignation.

While contentious, depending on the circumstances, this approach finds precedent in case law such as Nokeng TSA Taemane Local Municipality // Louw No and Others (JA7/16) [2018] ZALAC 37. In this case, an employee facing allegations of financial misconduct was given the choice to resign or face criminal charges. The Labour Appeal Court ruled in favour of the employer, affirming the right to reserve criminal charges while...