Employers rights when you catch your employee stealing
Perhaps things are going missing after hours, or the books aren’t balancing, maybe you’ve just got a sinking suspicion that someone isn’t using their work credit card appropriately. Whatever your concerns, you’ve got a right to investigate the situation but you must handle the process delicately to ensure that you don’t get into hot water.
Procedural fairness
Before you determine whether your employee is guilty or not, you need to afford them procedural fairness. This means that you have to:
- Put the concerns or allegations to them
- Listen to their response and take this into consideration before making any final decisions
- Carefully consider all the evidence and information before you
Top tip: before you sit down and have a chat with your employee, do your due diligence. Review any video footage you can get your hands on, check the credit card statements carefully, review internal emails or messages. Think carefully, is there anything that I need to take a copy of (or screenshot of) before I put the employee on notice, just in case they attempt to delete anything post discussion?
Having the difficult discussion
Once you’ve done your due diligence, it’s time to put the concerns or allegations to the employee direct. Advise them that you haven’t come to any conclusions but wanted to talk to them about some concerns. At this point, give the employee an overview or summary of the concerns and then give them the opportunity to respond – silence is key here, as it can often lead an employee to confess or open up.
If your employee is not forthcoming, or flatly denies the allegations, provide them with all of the information that you’ve got before you and ask them again to respond. Listen to any responses and take them into account before making any final decisions.
If the employee says that they refuse to participate in the process, or that they don’t want to answer the questions, then remind them that you have to consider all the information before you and if that doesn’t include their information / responses then you’ll have to make a decision without their input.
Making the decision to terminate employment
If you want to proceed to terminate the employee’s employment, first consider:
- If you have enough evidence or information to do so
- Do you have enough evidence to sack someone on the spot (this is called summary dismissal and means that you don’t need to provide them with any notice of termination) NB: you can only summarily dismiss someone in the most serious of cases, get advice before proceeding down this route
- How much notice of termination do you need to give the employee? Check the contract of employment and the National Employment Standards (or any applicable industrial instrument)
- Ensure that you provide the termination of employment notice in writing – dismissal doesn’t take effect until it is in writing
- Clearly set out the reasons for the dismissal in the termination letter and get us to check your letter if you’re worried about the risk of a claim
What are the risks when terminating an employee for theft?
Whenever you terminate an employee’s employment you risk claims such as unfair dismissal, general protections or a breach of contract claim. Therefore, before you sack someone, contact us to talk through your risk, liability and ways in which you can reduce any adverse impact on the business.
How we can help your business
We can help your business by:
- Representing you to defend an unfair dismissal, general protections or breach of contract claim
- Investigating allegations of theft, fraud or inappropriate behaviour
- Implementing disciplinary procedures in your workplace
- Updating your policies and procedures dealing with surveillance in the workplace, how to report inappropriate or unlawful conduct, the steps the business will take in investigating concerns and ramifications for failing to comply with your policies and procedures
- Training for your management or HR team on how to deal with suspected instances of theft, fraud or inappropriate conduct in line with procedural fairness
Call us today to discuss your workplace needs on 03 9111 5660
This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation.
Published Jan 22, 2018
Jessica Kerr is the Director of Sinclair + May, a female-led, boutique commercial law firm based in Melbourne’s inner north. Sinclair + May work with small businesses to ensure their legals are in order. Book a free 15-min chat here to talk with one of our solicitors.
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