Flowchart – Dealing with dishonesty or suspected criminal activity

The key difference in how we treat alleged dishonesty or illegal activity by employees (vs other disciplinary or dismissal matters) is the potential for Police involvement. All employees have a duty to work honestly and faithfully. Any breach of this duty can justify dismissal. Unlawful activities by employees can constitute grounds for dismissal. For example, legislation outlaws offences such as theft as a servant, misappropriation of property, embezzlement, fraud, vandalism, unlawful discrimination, sexual harassment, safety breaches, use of illegal drugs at work, etc. Our policy is that serious matters which may be criminal will generally be referred to the Police. Any disciplinary action BigApple takes is separate from, and additional to, any action the Police choose to take.
1. When collecting the facts around something which is potentially both a breach of our Code of Conduct (which we must handle) and a criminal matter (for the Police to handle) it is important to remember that the standards of proof required in each case are quite different. For an employment matter (e.g. unauthorised possession of company property) the standard of proof required to decide on disciplinary action (including dismissal) is ‘the balance of probabilities’ (what is most likely to have happened. By contrast the standard of proof for criminal charges (e.g. theft as a servant) is the much higher ‘beyond reasonable doubt’. Make sure you involve HR in these investigations and decisions . Even if criminal charges are not initiated, fail, or are eventually dropped, a dismissal for dishonesty will still be valid if we have good cause and use a fair process. Involving the Police can complicate matters from our viewpoint. Under employment law all employees have a duty to answer your questions concerning allegations of wrong-doing that are in breach of your policies or Code of Conduct. However, once put into the Police jurisdiction, employees have a right to remain silent and can refuse to answer questions on the grounds that it may incriminate them. So no such matter is to be referred to Police until we are satisfied a Police investigation is more appropriate than an in-house process. Once the matter has been put into the hands of the Police, your ability to follow through with disciplinary action may be delayed until the Police case is resolved. This can take many months, leaving you with no option but to continue paid stand-down of the employee pending the outcome of a Police prosecution.
2. If we decide to start a disciplinary process we follow our normal Disciplinary Process (Hence Steps 3 onward in this flowchart are our normal disciplinary process). Note: We are not obliged to advise the employee whether we will or won’t put the matter in Police hands and we should not commit either way until our investigation is complete. Make sure you involve your manager and HR in all such cases. While our Policy is to refer serious criminal matters that are also employment matters to the Police this decision needs to be made case by case. Involve HR and your Manager who will help with this decision and the related decision about when and how to progress the disciplinary process.
Step 3 and all subsequent steps are the same as our normal disciplinary process.