By Isaac Chan

Everyone wants to be able to trust the staff that work for them, but what happens when the numbers aren’t matching up? What happens when you suspect that an employee you trust in your business isn’t being completely honest with you?

What do I have to do to address this?

Now, before you jump straight into firing the employee, it’s important to investigate the situation to determine whether you are reasonably convinced that the employee has stolen from the business. While you may have already drawn your own conclusions, it’s important to have a look at the whole situation and determine objectively whether this person has stolen from you.

This involves undertaking a formal investigation to gather as much evidence as you can to support your assertion that the employee has acted dishonestly. When you undertake an investigation, this can involve:

  • Gathering any written evidence you have (i.e. cash register reports, stock take reports or bank statements).
  • Interviewing potential witnesses
  • Gathering any visual footage you may have such as security camera footage.

Once you have all the evidence it’s important, as part of the investigation, to then have a meeting with the employee in question. The purpose of this meeting is to present all of the evidence to the employee and gather their response.

It’s important to ensure that when you hold this investigation meeting you follow the procedural fairness requirements of:

  • Inviting the employee in writing to this meeting;
  • Giving the employee at least 24 hours’ notice of your intention to have this meeting; and
  • Inviting the employee to bring a support person if they wish to do so.

Once you’ve explored all possible avenues, you then need to consider whether you can reasonably demonstrate that the employee has, indeed, committed theft. In determining this, the threshold that you need to meet is what’s called ‘Balance of Probabilities’. While this may seem like an odd phrase to use, it’s essentially asking whether the individual has more likely than not done something.

When framed in the context of theft, the question we are asking here, based on all the evidence we have on hand, is: “Did this employee more likely than not steal from you?”

Can I suspend the employee while I investigate?

A question that a lot of employers ask is whether they can suspend an employee while investigating an allegation. In order to suspend an employee, the employee needs to pose a genuine risk to the business or the investigation if they continue working while an investigation is taking place.

If you believe there’s a genuine risk in having the employee continue working, you can suspend him or her while the investigation is taking place. In doing this, however, you need to ensure that the employee is still being paid while they’re suspended as the allegations have not yet been proven.

Termination?

The next question you might have, if you can demonstrate that the employee has taken company property, is can you now terminate?

If you can objectively and confidently demonstrate that the employee stole from the business, then you could proceed with termination on that basis; however, we recommend you follow a process in doing so.

This process involves running what’s called a ‘show cause’ meeting, whereby you put to the employee your determination as a result of the investigation and ask the employee to give you a reason why their employment shouldn’t be terminated.

If the employee provides a reason, it’s important to take a break in the meeting to consider the employee’s responses and, once you’ve considered these responses, return to the employee with a decision.

When you hold a show cause meeting you need to ensure that, like the investigation meeting, you follow the procedural fairness requirements of:

  • Inviting the employee in writing to this meeting;
  • Giving the employee at least 24 hours’ notice of your intention to have this meeting; and
  • Inviting the employee to bring a support person if they wish to do so.

If the employee’s employment has been terminated, we recommended that, in due course, you provide the employee with a termination letter that outlines the reasons why they were terminated.

As theft falls within the scope of serious misconduct under the Fair Work Regulations, you can terminate the employee immediately without the need to provide notice.

Can I get the stolen money or property back?

Of course, once you can reasonably demonstrate that the employee has more likely than not stolen from you, it’s reasonable for you to ask: “how do I get my money or property back?”

This can be an issue as it’s not something that you can just take from an employee’s pay (recovering the value of stolen money or property is not an allowable deduction under the Fair Work Act).

While it may be frustrating, the best approach to getting your property back is first talking to the employee to see whether they’re willing to return what they’ve taken. Given you have the option of taking legal action against the employee to recover your property, as well as involving the police if you believe it necessary, making the (now or soon-to-be) ex-employee aware of this may prompt them to return your property to avoid this happening.

Isaac Chan is an experienced workplace relations consultant at FCB Group and HR Assured. Isaac regularly handles complex workplace issues for all kinds of businesses, from start-ups to enterprise-level.