Opinion Piece by:
Sean Smart
I write this article today as a fundamental question has been raised, as to whether or not the consumption of products and goods in a store is okay before payment for such has been made. In reading this I am sure you are aware and have been to a retail store and have in fact bought something from a shop before. I will therefore like to only focus on two fundamental points in relation to this topic.
Before I answer this question there are a few points to consider, the first being the ownership of the stock in question. Retailers and merchandisers procure stock and then sell it on to the general public, such is the nature of their business. If for example you remove a candy bar off a shelf and consume it before you get to the till even with every intention of paying for it at the till, is that candy bar yours. The simple answer is no, that candy bar remains the property of the business and is apart of its stock. Only once you have paid and a valid transaction has been concluded will that candy bar be your property.
The second point of departure I would like to address is, can you remove something without any permission or any prior arrangement. The simple answer is no, this constitutes theft which is simply defined as; the taking of another’s property without permission. With this being said the removal off the shelf is an intentional act as well as the opening of the candy bar and the consumption of such, if no permission has been given for you to do this and you haven’t paid then it is no mere accident that you ate the candy bar.
In conclusion, the removing and consuming of goods in stores is wrong as it is tetra mount to theft, so it is best practice to conclude your shopping trip before eating candy bars in the store. This is an intentional act and is wrong. Stores generate an income from purchases, the removal and consumption of such before an actual transaction has been concluded results in a loss of income to the store, which relies on its sales to purchase stock and pay its staff. An intention of paying is not payment or the conclusion of a valid transaction
In respect to employees who are employed at a business, there are policies, rules and procedures in place which employees are to follow at all times. Employees employed in a retail environment will be expected to work with and handle stock, the question arises then as to weather the consumption of a candy bar is acceptable or not. I will start by addressing company policy rule and procedure. Most companies have systems and mechanisms of control in place, in respects to this. The most simple one of these would be, if you want a candy bar you must obtain permission from the company for it or provide a proof of payment in respects to it, prior to the employee removing or consuming the product.
Should the employee fail to do this as per Rainbow Farms (Pty) Ltd v CCMA and Others (2011) 5 BLLR 451 (LAC), the court held that the unlawful removal, the mere act of removing the employer’s property from the place that it is usually kept, is sufficient to constitute theft, these employees. In Continental Oil Mills (Pty) Ltd v Singh NO and Others (2013) 34 ILJ 2573 (LC), the labour court held that the common factor in matters of theft and unauthorised use of property is dishonesty. In the aforementioned matter, the court was faced with an application to review and set aside the arbitration award issued by the first respondent (commissioner) on 8 June 2010 declaring the dismissal of the third respondent (employee) by the applicant to be procedurally unfair and without a fair reason. The employee was accused of removing a bottle of mayonnaise from the production line which was discovered in her bag. The reason provided was that she had removed the bottle of mayonnaise for testing purposes. The court then had to decide whether the conduct constituted theft or the unauthorised use of property. The court held that “Generally, theft and unauthorised possession belong to the same genus of dishonesty. Both are premised on the conduct of an employee which deprives the employee of the ownership of a good. While theft has an element of intention, an employer is not ‘required to prove charges of theft with the rigour expected of the state in criminal prosecutions – proof on a balance of probabilities suffices.” The dismissal of the employee was therefore found not to be unfair.
As employers who ordinarily employ staff to furnish the business, it is important to ensure that the company policy, rules and procedure in respects to stock are clearly put in place and understood by all employees and that these rules, policies and procedures are consistently applied in terms of transgressions.
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