Section 168 of the 2025 Employment and Labour Relations Act provides that an employer may terminate the contract of employment where the employee has committed ‘serious misconduct’ in the course of his or her employment. Serious misconduct is defined as including “acts of theft, misappropriation or wilful dishonesty against an employer, another worker, or a customer or client of the employer.”
It is important to note that termination on the grounds of wilful dishonesty is not automatic: the section states that the employer may terminate the contract of employment on this ground. In other words, the employer has discretion whether to terminate. Therefore a termination for ‘minor dishonesty’ might well be regarded as substantively unfair.
In these cases, the employer must follow a fair procedure, and hold a fair disciplinary hearing before terminating employment on grounds of dismissal. If the police are investigating a case of dishonesty arising from the workplace, it is not necessarily unfair to dismiss the employee before the outcome of the police investigation or criminal trial. And it does not render a workplace dismissal automatically unfair if the employee is subsequently acquitted in a criminal trial.
What if the employee refuses to cooperate with the workplace investigation and / or the disciplinary hearing? The employee may, for example, refuse to answer questions. In such a case, it is important not to infer guilt from silence.
If there are multiple suspects of dishonesty, each and every suspect should be dealt with separately. It is not necessarily unfair to take disciplinary action and dismiss all the suspects. However, there is no ‘fire all or none’ rule: if there is a member of the group in whose honesty the employer has confidence on solid grounds, he or she should not be dismissed.
What Amounts to Dishonesty?
The Employment and Labour Relations Act does not define dishonesty, and the Court will have therefore have regard to previously decided cases and / or a dictionary definition.
On this point, it is instructive to consider a precedent decided in the Industrial Court. In a case involving Water Utilities Corporation, the dismissed employee was a Customer Care Officer. Here, a customer’s water connection had been cut because of failure to pay her water bill. The customer had a friend named Modikwe who worked at Water Utilities, and who had promised her that if she paid P1,600 to Water Utilities to clear her arrears, the water connection would be restored. Unfortunately, when the customer. arrived at Water Utilities, Modikwe was not in his office. However, the aforementioned Customer Care Officer was there and asked if she needed assistance. The customer explained her problem, and the Customer Care Officer offered to help her. He offered to take the cash, pay her bill and give the receipt to Modikwe so that the receipt could be passed to the customer. The Customer Care Officer did not use the money to pay the customer’s bill, and when he was confronted by Modikwe regarding the missing money, the Customer Care Officer said he was intending to pay the cash to Water Utilities, but he had borrowed the money to pay some personal debts. The Customer Care Officer was subsequently charged with misappropriation of the Corporation’s funds, found guilty at a disciplinary hearing, and dismissed.
The Customer Care Officer applied to the Industrial Court, seeking reinstatement for his allegedly unfair dismissal. In Court, the Customer Care Officer’s attorney argued that his client’s dismissal was substantively unfair because he had misappropriated the money before it was paid into the coffers of Water Utilities, and therefore he had not misappropriated the Corporation’s funds.
The mind boggles at such poppycock presented by a qualified attorney …. The Corporation is a legal person which acts through its employees. All monies that go into the coffers of the Corporation to pay for utilities go through the hands of its employees before they are deposited into its accounts. Would it make legal sense to say that until the monies are so deposited after receipt by the employees, the said employees may embezzle it without committing any offence against the Corporation?
[For a more detailed analysis of this and other points arising in this case, see Issue Number 20 of Andrew Briscoe’s Botswana Labour Law Review].
This article is provided for general information only and does not constitute legal advice. Legal advice should be obtained in relation to your specific circumstances.
