What is workplace theft and dishonesty?
Workplace theft and dishonesty may be more prevalent than it seems. It could include more obvious examples such as stealing from the cash register or theft of company product. It could also include conduct employees might consider less severe, such as taking questionable sick days, punching out a bit too late (i.e. "time theft"), or taking home office supplies. Most difficult of all, employees seldom report the offenders, which perpetuates the dishonesty. It is therefore important for employers to actively police this conduct.
Is dishonesty "just cause" for termination?
It used to be that any employee dishonesty would constitute just cause for termination. This is no longer the case - if a court considers the dishonesty to be relatively minor, or there are other mitigating factors, then it may not support a termination for cause.
What should we do if we suspect an employee is dishonest or has committed theft?
First and foremost, contact an experienced employment lawyer, as every situation is different. We typically advise clients to consider the big picture before deciding on the next move. In most cases, you should proceed as follows: (1) question the suspected employee(s); (2) consider whether to investigate further; and (3) consider what remedial action to take.
Why question the suspected employee(s) first?
Many employers find this to be counterintuitive. However, there are several good reasons to question the employee prior to conducting an investigation or taking any action. First, it will force the employee to lock his or her version of events early. The employee may not expect this; they may even be caught off-guard by this move if they do not intend on being honest. If your investigation later uncovers information which contradicts the employee's original story, they will not have an opportunity to explain it away. Third, doing so will show that you, the employer, is taking an honest and earnest approach to the investigation, rather than preparing to ambush the employee with one-sided allegations - a frequently occurring complaint in such circumstances.
When should an employer investigate workplace theft and dishonesty?
When employees lie to protect themselves, the conduct starts to look more like workplace fraud . Naturally, you will want lying employees out of the workplace as soon as possible. However, it can be difficult to know, let alone prove, when an employee is lying. Sometimes, a more thorough workplace investigation is warranted.
What remedial action should be taken?
At the very least, issue a disciplinary letter. The letter should indicate the exact nature of the misconduct and give a clear warning to the employee that further misconduct of the same nature will lead to termination for cause.
If a disciplinary letter would be insufficient, consider whether a suspension without pay is appropriate. Courts have held that this is a justifiable disciplinary response in many circumstances. A suspension without pay serves as a strong warning against future theft and dishonesty and, if the conduct is repeated, provides good support for a subsequent termination for cause.
To terminate for cause or without cause?
Although you may have grounds for a just cause termination, it is not always worth it to proceed in this manner. Alleging just cause can risk aggravating the employee and may increase the likelihood of litigation. If the employee has a relatively short length of service and has signed a lawful employment contract limiting their entitlements, there may be little to no financial cost in terminating the employee without cause.
What can Hyde HR Law do for me?
The lawyers at Hyde HR law are experts in workplace theft and dishonesty. We will help you decide the best course of action, devise a workplace investigation plan, advise you on best practices in addressing the suspected misconduct, and, if necessary, vigorously defend you in subsequent legal proceedings. Contact us today.
