I've Been Robbed! Call the Police! Or Not?

Someone asked me recently to explain the pros and cons of involving the constabulary in employment disputes where the employee is accused of doing something that not only offends the employer’s rules, but is a criminal offence.  It is a question which turns as much as anything on issues of strategy rather than of law, but it is an interesting issue to consider. 

The important thing to bear in mind is that employment processes are different to criminal processes, and the employer can not control any Police involvement.  By this I mean that the Police may investigate an alleged crime whether or not the employer complains about it (eg if a complaint is made from somewhere else), and may elect not to investigate an alleged crime despite a complaint. 

However, if the Police do investigate a complaint, then the person under investigation gains a handful of rights attached to the criminal process.  The most important of these is the right to refrain from making any comment.  The purpose of this right is to protect people against self-incrimination.  So, an employee under investigation by the Police could quite reasonably refuse to explain themselves to their employer in a disciplinary context because to do so might be self-incriminating. 

Let’s consider an example.  Office Limited employs an Office Manager who has wide authority to make payments on behalf of the business.  When the Office Manager takes annual leave, her temporary replacement notices some odd-looking transactions.  It looks like the Office Manager has been creating false invoices and using them to authorise payments to her.  She appears to have been paid more than $50,000 in this way.

Assuming the initial impression is correct, the Office Manager has likely committed criminal offences.  Office Limited does not have the resources to investigate any further, and is scared that if they confront the Office Manager, important documents will be destroyed.  So a Police complaint is made.  The Police gather evidence and then charge the Office Manager with a dozen offences.  She is released on bail while the justice system churns through its process.  It’s likely to take up to a year before it is complete.  

And what of Office Limited?  Well, the Office Manager is still an employee and is still entitled to the rights that attach to an employee.  The company needs to go through a fair process to determine whether she should be suspended, or whether her employment should be terminated.  At the disciplinary meeting, the Office Manager refuses to make any comment.  Can a decision be made without hearing her response?

This is a tricky area of law.  Many businesses deal with it by providing in their employment agreements that a person can be suspended without pay where they are not able to respond to a serious misconduct allegation within a reasonable time frame.  Some would argue that an employer would be justified in making a decision in the absence of an employee’s response where there is unlikely to be a response within a reasonable period.  Sometimes it’s made easy if the employee is imprisoned awaiting trial (termination for frustration is a straightforward option here). 

The key point is that the Police process might slow the employer’s process.  It can be advantageous to involve the Police if your evidence is thin because you might later rely on the Police evidence to take action (and note that criminal offences require proof “beyond reasonable doubt” while employment matters only require proof on the “balance of probabilities” so even if the Police are unsuccessful, that will not stop the employer from acting on the same information). 

Another advantage of involving the Police is that if a prosecution is successful, the Court can order, as part of the offender’s sentence, a reparation payment – so you might get your money back – eventually!

On the other hand, there may be reasons to deal with the employment matters before handing your information over to the Police.  That way your relationship with the employee is at an end long before any Police involvement can interfere with how you want to address the issue.  It may also be the case that the Police would respond more favourably (ie be more likely to prosecute) to a file with all the detail gathered by the employer than some half-hearted allegations. 

One important point to note is that it is blackmail, a crime in itself, to threaten a Police complaint to obtain an advantage in negotiations.  So, whatever you elect to do, you should never be in a position where you agree to not go to the Police in order to obtain repayment of what was taken. 

Some other considerations to bear in mind when considering a Police complaint about your employee:

• No matter what, the employer is still required to consider the matter itself and reach a ‘justifiable’ decision – the fact that there are Police charges is not, by itself, enough to justify dismissing an employee;

• A Police complaint might have consequences for your business.  The Police may want to take equipment as evidence and this might have a disruptive effect;

• There may be media interest, and you will not be able to control this.  What impact would publicity about this issue have on the business reputation?;

• The Police and Court process can take a long time and tie up a lot of resource

In the meantime, lets hope you never find yourself in this position!  If you need help dealing with a tricky employment situation - please don't hesitate to call.