A recent case has prompted the question of when is theft actually theft? It is a serious allegation for any employer to make, and one which can potentially carry with it criminal consequences, so an employer must be sure that the matter they are referring to is in fact genuine and could not be misinterpreted.
The case in question, employer-v- employee ud1740/2011, concerned an employee who had taken a €10 note and placed it in his top pocket with a view to ringing in the order already given to the customer into the till when they got around to it.
The employee never did ring in the order and the employer saw this as a serious breach of procedures and as wilful wrongdoing.
The tribunal was of the view that this was not in fact wilful wrongdoing and was a case of carelessness by the employee. The sanction to dismiss was seen to be wholly disproportionate and an award of €11,000 was made to the employee.
This raises the issue of dishonesty as an act such as this breaches the trust in an organisation, however a fundamental of this is 'wilful intent'. An employer must establish whether or not an employee set out to do something such as steal money or goods, or was this simply an act of negligence or carelessness.
As such it may be that the terms of the theft itself becomes somewhat irrelevant, and the major issue becomes actions carried out. was this something that ordinary people would consider to be dishonest, and was the person concerned aware that this action was considered by those standards to be dishonest.
In the case of Hestor v. Dunnes Stores Ltd UD 38/87 the employee took items of stock but when confronted only paid for two of the three items and concealed the third item. theft was somewhat not in question, what was in question was the actions of the employee and the matter called for a reasonable explanation. "I am satisfied that as Mrs Donnolly stated, something more was reasonably required than an affirmation of failure to remember. The decision to dismiss was made because no sufficient explanation was, in the view of management personnel, given. The situation was obviously one calculated to arouse deep suspicion and requiring a satisfactory explanation. In the circumstances the management did not act unfairly or without justification in all the circumstances of the dismissal."
the tribunal in this case looked at the question of whether or not the company was justified in acting as they did given the explanation they were given. This should be what is considered by employers when looking at cases of theft or dishonesty. The impact of an allegation of theft can be severe for an employee (loss of job, potential criminal convictions, or int he health care sector the inability to get a new role) so employers must be very clear when dismissing an employee that there was wilful intent and they knew what they were doing was wrong. the value of the items is not the overriding factor.
Relevant items for an employer to consider are;
- did the employee know that their actions were wrong
- did the employee attempt to cover up their actions
- would a reasonable person belive these actions to be wrong
- did the employee deny this when asked
- has the employer a clear policy against this
- did the employee change their story during investigation
As with most elements of employment law actions such as these cannot be taken solely in isolation and must be viewed as a whole. As in our earlier case the employee putting money in his top pocket is somewhat suspicious but when viewed as a whole they forgot to ring this money through the till. It should always be viewed in its entirety and an employer seek to find out exactly what the employees belief of the situation was and the above mentioned questions looked at as a general guide when investigating the matter.
