How to deal with dishonesty or suspected criminal behaviour
START The key difference in how we treat alleged dishonesty or illegal activity by team members (vs other disciplinary or dismissal matters) is the potential for Police involvement. All team members have a duty to work honestly and faithfully. Any breach of this duty can justify dismissal. Unlawful activities by team memberss 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 council 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 standard terms of employment (STE) (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 Organisational Development and Capability in these investigations and decisions.
‘Should the Police be advised?’ 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 team members have a duty to answer your questions concerning allegations of wrong-doing that are in breach of your policies or STE. However, once put into the Police jurisdiction, team memberss 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 suspension of the team members pending the outcome of a Police prosecution.
2. If we decide to start a disciplinary process we follow our normal disciplinary process. We are not obliged to advise the team member 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 Organisational Development and Capability in all such cases.
While our practice is to refer serious criminal matters that are also employment matters to the Police this decision needs to be made case by case. Involve Organisational Development and Capability and your manager who will help with this decision and the related decision about when and how to progress the disciplinary process.
3. Suspension and all subsequent steps are as per our disciplinary process