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Employee Theft: Out, Foul Spot?
There are only two types of people in the world: good people and bad people. Let me explain.
Imagine, if you will, a court room. A woman stands accused of stealing money from her employer. The prosecution calls a witness - a co-worker - who tells the jury that he can establish, without any doubt, that the woman is guilty. He shows the jury company accounts which suggest that money has gone missing - and then says that, on a number of occasions, he distinctly recalls the woman leaving the office with bags which appeared to be filled with money.
The jury nods, knowingly. The defendant's shoulders slump.
Now, however, the defence counsel rises. He asks the witness to tell the Court about his tax returns. The witness squirms. He is forced to admit that, less than a year ago, he himself was convicted of fraud as a result of misrepresenting information to the IRD.
There is chatter in the court room. Members of the jury look confusingly at each other. Can the witness be trusted? If he lied on his tax return, how can we be sure that he is not lying about this woman's theft? Goodness - it may even be that a dishonest man like the witness committed the crime himself!
The above example (or something like it) was put to me in the course of an evidence lecture - and I should swiftly add that there are rules of evidence preventing such information being presented to a Court (except in limited circumstances) because of its likely damning nature.
It is simply a matter of human nature for us to assume that if a person can be shown to have been dishonest once in the past, it is more likely that the person will be dishonest in the future.
There is no science to it - I am not sure that it could ever be empirically proven - but it certainly affects the way that we think about people. To emphasise this point - take the above example and imagine, instead, that the defence counsel proved that the witness was a convicted child sex offender. Would we believe anything he said … about anything?
Hence, as my evidence lecturer would say, there are only two types of people in the world - honest people, and dishonest people. The first kind can always be trusted, and the second kind can never be relied upon.
This same facet of human nature is also reflected in employment law - and is illustrated by a report of recent events which occurred in Auckland.
A large commercial law firm held a function at a restaurant. At some point during the evening, a solicitor employed by the firm allegedly took about $8.00 from the "tip jar" for staff. He was seen taking the money, and a complaint was made. A security camera in the restaurant recorded the incident - and video tape was used to confirm his identity.
Newspaper reports suggest that, after the matter was brought to the attention of the law firm, the solicitor made a decision to leave his employment. A spokesperson for the law firm made a comment along the lines that the firm expected that its employees would conduct themselves with honesty and integrity.
In itself, this sentiment is probably consistent with the expectations of all employers: no matter what type of work you do, your employer can reasonably expect that you will act honestly.
But what about circumstances like these? Let's consider a factual situation similar to that outlined. Should an incident of dishonesty on one occasion (assuming that it can be proven), involving something like the theft of $8.00 - justify an employer taking disciplinary action against an employee? Could an employer in such a situation dismiss the employee from their job?
Under New Zealand's employment law, the answer is not absolute. On the one hand, there is no question that an act of dishonesty amounts to misconduct - and accordingly, an employer may take appropriate disciplinary action against an employee shown to have acted dishonestly. On the other hand, however, an employer is required to take action which is proportionate to the wrongdoing itself.
In itself, an incident involving theft of $8.00 might not justify dismissal. Other factors may, however, be taken into account.
It might be relevant to consider whether the theft occurred at a work function (the situation may have been different, for example, if it had taken place in the weekend and by the employee "playing the fool" with a group of his friends).
The employer might also take into account whether the theft involved an outside agency - such as the waiting staff at a restaurant (the situation might have been different if had occurred within the workplace itself - ie involving theft from the employer).
In other words, whilst that feature of human nature might play a part in the employer's mind - that the employee had demonstrated him or herself to be a "bad" person - it may not necessarily be justified in concluding that dismissal was appropriate - or, indeed, that the person would tend to be dishonest again in the future.
Maybe there are only two types of people in the world: but deciding which ones fall into the "good" category is something which has to be approached with care - and by weighing the facts of a situation of alleged misconduct.
