Damage to Property - Pdf

DAMAGE TO THE EMPLOYER'S PROPERTY (NEGLIGENT OR INTENTIONALLY) By Johanette Rheeder Introduction This misconduct can have two elements. The first is wilful damage where the employee does it on purpose to be malicious. Evidence hereof may not be easy to obtain, however, if the employee is charged with wilfully damaging property of the employer or third party, then it must be proven that the employee committed the offence on purpose. The other part of this misconduct is where the employee negligently damages the property of the employer or third parties, such as a contractor. Case Law In National Union of Mineworkers obo Nabe v Eskom Adelaide1 , the employee was dismissed for negligence because he took the company car without consent and had an accident while driving at great speed. It was obvious that the presiding officer had considered the cumulative effect of the two offences when imposing the sanction of dismissal for negligent driving. The commissioner held that this was permissible, and that he would do the same. The employee’s negligence was gross. Just before the accident, the vehicle’s on-board computer indicated that he had been travelling at 148km/h in a 60km/h zone. The rules relating to unauthorised use of company vehicles and against negligent driving are both important. The employee’s claim that he had been worried about his wife’s safety was unconvincing. The respondent had had to write the vehicle off after the accident. There was also evidence that the employee had used company vehicles without authority on several occasions. The employee’s dismissal was upheld. How to Charge the Employee? The following serves as an example of charges: Charge 1: “You are hereby charged with Item 5.4.4 of the of the disciplinary code of conduct: the malicious or negligent damage to company property where you on the 30th of November 2013 at the employer’s depot in Alrode intentionally and in a fit of rage hurled the company fax machine out of the third story window, which caused damages amount to R16 000.00.” What Must the Employer Prove?  Evidence should be collected such as photographs of the damage or witness statements of people who saw what happened.  Try to find reasons why the employee acted as he did - he may have been refused an increase which caused him to be cross with the employer. You can use this in cross examination.  Question his colleagues - they may be able to reveal things that were said by the accused employee about how he would hit back at the employer for the perceived unfairness.