Suspended after allegation of theft

[greendollar]

Here goes ,

 

A friend has been suspended from his place of work (along with 2 other colleagues) accused of the theft of salt ,x6 bags.

During the recent bad weather the 2 colleagues requested could they take/use some of the salt stocks as they had been experiencing difficulties getting their cars out and onto the road and into work.

As his manager was not there and as he was the most senior employee there he thought that it would be ok and that stocks of salt were sufficient for the needs at work so he allowed them to take 6 bags on the condition they were to be replaced at a later date .

They were observed by another member of staff loading the salt into the boot of a colleagues car who reported the incident to a (he believes) senior manager.

THE SALT WAS RETURNED UNUSED A WEEK LATER .

 

Some weeks later on returning to work and after the salt was returned my friend was suspended .

 

The paperwork he has received since state that their are 2 witnesses to the incident who wish to remain annonymous . Both statements are pretty much the same word for word .

It is obvious that there is one witness and the other is just the managers report of the incident as it was reported to him by the original witness , they seem to be trying to muddy to waters so to speak as to how many witnesses there actually are .

 

Another concern is that the witness took it upon himself to search the car after they had loaded the salt into the boot and left , taking photos as evidence .

In the witness statement he/she openly admits that no attempt was made to conceal what they were doing and that anyone walking by could have observed them .

He knows that one other member of staff has been allowed to take salt off the premises to help them be able to get into work due to the icy weather .

 

My friends only concern was to help colleagues in getting to work safely , thats all . He's been employed with them for 11 yrs with no problems and nothing on his disciplinary record .

He's extremely worried as they are accusing him of theft and undermining his manager by allowing his colleagues to take the salt .

 

Is there anything he can use regarding the alledged 2 witnesses and what his colleagues believe was in unlawful search of their car when it comes to the disciplinary ?

 

 

Any help would be appreciated .

[SarEl]

Not really I'm afraid. None of this changes the fact that he did allow this to happen (and presumably didn't have the authority to permit it) and on that basis it is theft, regardless of whether the bags were returned or would have been replaced. I think his best argument is honesty - tell the truth about what happened and why it happened. It doesn't seem all that unreasonable - but equally it is only mitigation and not a defence as such. But as you know, a disciplinary (and employment law) are not based on rules of evidence in the same way as other courts. The employer neither searched the car nor permitted it to be searched (although in the latter case, had they done so they may have been ok anyway since it was on their premises and a refusal, whilst lawful, would have been damning!). So the fact that evidence is available goes beyond even "reasonable belief". It can't be denied that it happened, so I think that the only way out is to argue the mitigation and see what happens. Sorry, but I think going all "Perry Mason" over this will simply put the disciplinary panels backs up, and since the offence did happen - well, you want them in a sympathetic frame of mind.

[greendollar]

Thanks Sarah ,

 

It seems a terrible shame that he could be sacked and branded a thief when all he was doing was trying to ensure that they weren't short staffed , even more so as the employer has not actually lost anything , he also believes that he did have the authority to sanction the use of the salt as he was the most senior employee there and it would have been of benefit to the company ....all common sense has gone out of the window .

Edited January 19, 2011 by greendollar

[Sidewinder]

I would agree that whilst this is indeed a shame, the evidence provided looks pretty conclusive and if they want to make it a case of theft then they will be more than able to do so.

 

I think that as SarEl has suggested, a full and frank explanation of what happened is the only option. Nothing was hidden, he had the company's interests in mind, believed he had the necessary authority to make this judgement, previously impeccable record (?). It might also be worth mentioning that he considered this a Health & Safety matter.

 

With hindsight this could probably have been avoided had your friend left a note, or had a conversation with his manager the following day to explain what he had done and why, which would, no doubt have made the whistleblower look rather silly when he or she produced the evidence of 'theft'.

[greendollar]

Thanks for the replies ,

 

I know this most probably won't help but the issue of the 'witness' statements is very strange , they are almost identical .

I don't understand why the reporting manager wishes to remain annonymous , at the end of the day he is just doing his job .

My friend suspects that the manager has made up a bogus annonymous witness and that it is just this one manager who witnessed the incident and has lied about another colleague being a witness in a bid to cover his back .

How can he get to the bottom of this ? Is it possible to get the identity of the witness by perhaps asking that they attend any disciplinary ?

I'm aware that this doesn't detract from the fact that an offence has been committed , although there was no intention to deprive the company of anything , but surely it would help if the manager involved has been somewhat devious in attempting to bring this theft accusation against him .

Edited January 20, 2011 by greendollar

[SarEl]

Thanks for the replies ,

 

I know this most probably won't help but the issue of the 'witness' statements is very strange , they are almost identical .

I don't understand why the reporting manager wishes to remain annonymous , at the end of the day he is just doing his job .

My friend suspects that the manager has made up a bogus annonymous witness and that it is just this one manager who witnessed the incident and has lied about another colleague being a witness in a bid to cover his back .

How can he get to the bottom of this ? Is it possible to get the identity of the witness by perhaps asking that they attend any disciplinary ?

I'm aware that this doesn't detract from the fact that an offence has been committed , although there was no intention to deprive the company of anything , but surely it would help if the manager involved has been somewhat devious in attempting to bring this theft accusation against him .

 

I can see your point but I would warn that it may be counterproductive to the mitigation. That's a decision he will have to make.

 

There is no absolute right to know who submitted complaints. These would generally only be withheld if there was a well found fear of reprisals - but obviously this isn't a court of law, so the real test is only whether the employer has the ability to defend their judgement or reasonable belief. In this case, right or wrong, there is photographic evidence, so I think the fact that the employer might reasonably believe it happened is pretty well concluded!

 

On that basis, whether "deviousness" has been involved or not - the allegation is still true! So what does this do for your friends case - nothing. But what it may do, since the employer has chosen to take this to a disciplinary anyway (after all, they could have just heard the situation and decided that a sharp slap on the wrist was all that was required) then appearing to be trying to wriggle out of it by blaming someone else for the way it was reported... I am sure you will see that it has the potential to backfire without actually clearing him - and that could be the difference between dismissal or a warning!

[greendollar]

Hi Sarah ,

 

Your advice is always welcome , as he has not got a date for the disciplinary yet so would it be wise to ask for his company to look into his concerns , surely if the manager has been less than honest about witnesses this would only go in his favour . If he believes that the witnesses are one and the same then why has he gone to extreme of making false statements ? If the manager witnessed the alledged theft taking place why was this not dealt with immeadiatly rather than several weeks after the event ?

I can assure you he is not trying to 'wriggle ' out of anything and has been open and honest throughout the investigation , unfortunately it seems the same can't be said of the manager who , for whatever reasons , has chosen to lie .

Edited January 20, 2011 by greendollar

[SarEl]

Hi Sarah ,

 

Your advice is always welcome , as he has not got a date for the disciplinary yet so would it be wise to ask for his company to look into his concerns , surely if the manager has been less than honest about witnesses this would only go in his favour . If he believes that the witnesses are one and the same then why has he gone to extreme of making false statements ? If the manager witnessed the alledged theft taking place why was this not dealt with immeadiatly rather than several weeks after the event ?

I can assure you he is not trying to 'wriggle ' out of anything and has been open and honest throughout the investigation , unfortunately it seems the same can't be said of the manager who , for whatever reasons , has chosen to lie .

 

I wasn't suggesting he was trying to wriggle out of it - just that this may be the way that the employer takes it and they may not like it. You have been around long enough on these forums to know that none of this is a matter of law, but of judgement. Because if this results in a dismissal and goes to law - he will loose. So the strategy is to find the best way of convincing the employer to not dismiss - and that is always a matter of judgement and one that can only be made by him because (a) he knows the situation best and (b) it's his neck on the line!

[innocent123]

Hi,

 

I agree with Sarel, his best defence is honesty. The definition of theft is " a person is guilty of theft if he dishonestly, appropriates property belonging to another with an intention of permanently depriving the other of it " I am not sure how it works in employment matters, but in this case two defences are available :

 

1. honesty

2. there was no intention to permanently deprive the salt from the organisation.

 

I am not an expert on employment matters but hope this information may be of some use.

 

Regards

[papasmurf1cx]

Hi

 

I agree with innocent in these circumstances. It is not theft. I don't believe for one moment that a conviction in a criminal court would happen.

 

However I also believe on these facts that a criminal conviction / investigation will never happen. The employment investigation / disciplinary is the problem here and I agree that honesty is the best policy here. The snow was an appalling handicap for everyone and personally I think the friend showed initiative in helping to ensure that the company had their employees in at work and not stranded at home, as what happened to a lot of us.

 

I would be interested in SarEl's opinion on whether a dismissal in these circumstances would be OTT and what a ET woudl make of it?

[SarEl]

 

I would be interested in SarEl's opinion on whether a dismissal in these circumstances would be OTT and what a ET woudl make of it?

 

I would have to go with being incredibly keen not to find out ! TBH, I think there is a very large degree of risk that a tribunal would uphold a dismissal. It certainly wouldn't get anywhere near my threshold for being acse worth taking. Whilst it isn't, I would agree, a safe legal "theft" - in employment law terms, I would say that the relevant technical terms would be "very likely screwed".

[papasmurf1cx]

Thanks SarEl. So falling on the good will of the Manager hearing the case is the best course for all. Fingers crossed and hope sense wins the day.

[greendollar]

UPDATE .

 

My friend is still suspended ( third week ) . A problem seems to have arisen regarding colleagues contacting my friend and the 2 other colleagues that have been suspended . It does state in a letter that he should not contact anyone from his workplace and if he does need to speak to his colleagues that he has to get permission from the company to do so .

It has transpired that a colleague has been threatened with suspension because he has confirmed , after being summoned to the office and grilled for 2 hours , that he has spoken to my friend and one of the other colleagues suspended , they even wanted his phone records to find out when and how often he had spoken to them .

This all seems very OTT , these are not just colleagues but friends that socialise out of work ( he's been there 11 yrs) .

Do they have the right to refuse all contact with friends/colleagues , he fears that they may hit him with another disciplinary as colleagues are wondering whats going on as they were told the 3 suspended were off ' sick ' but as its been so long and through the grapevine now know whats going on .

[SarEl]

UPDATE .

 

My friend is still suspended ( third week ) . A problem seems to have arisen regarding colleagues contacting my friend and the 2 other colleagues that have been suspended . It does state in a letter that he should not contact anyone from his workplace and if he does need to speak to his colleagues that he has to get permission from the company to do so .

It has transpired that a colleague has been threatened with suspension because he has confirmed , after being summoned to the office and grilled for 2 hours , that he has spoken to my friend and one of the other colleagues suspended , they even wanted his phone records to find out when and how often he had spoken to them .

This all seems very OTT , these are not just colleagues but friends that socialise out of work ( he's been there 11 yrs) .

Do they have the right to refuse all contact with friends/colleagues , he fears that they may hit him with another disciplinary as colleagues are wondering whats going on as they were told the 3 suspended were off ' sick ' but as its been so long and through the grapevine now know whats going on .

 

Oh damn - this seriously screws up his position. They have the right to insist that he speaks to no other employee - and that includes people that may be considered friends. Contact with other employees could lead to allegations of interfering with the investigation, harassment etc., or even "getting their stories right" - and that is why there should be no contact. Breach of this is absolutely certainly a disciplinary offence in its own right, and he cannot claim that he didn't know because he was told not to speak to have contact with anyone from the workplace. The fact that they may have initially contacted him is splitting hairs that won't work - he should have simply said he was sorry and couldn't talk to them, and left it at that. There is now evidence from others to confirm that he has breached the suspension - so there is no way that, if the employer intedns to treat this seriously, that he can deny it.

 

He does not have to give them his phone records - but it will be of little relevance whether he does or not, because a single breach of suspension is sufficient for a further disciplinary, and this may even be considered gross misconduct in itself - and they have the evidence he has done it from other staff here. The fact that they socialise outsdie work has no relevance - he should have kept the terms of the suspension (and when it comes to "saving your own skin" bear in mind that "friends from work" can and often do become ex-friends from work" - in his own interests it was really stupid to talk to anyone, regardless of what the employer said!)

[greendollar]

Thanks Sarah ,

That is what he feared , bar disconnecting his phone he can't help it if colleagues phone him , its something he has no control over . He can't understand why its taking so long , they've been completey open and honest about the incident so any allegations of interfering with the investigation or getting their stories straight would be completely unfounded anyway .

Seems very harsh that they could drag this out for weeks and expect him to completey blank his friends/colleagues while drag their heels , I must say I'm surprised that they can do this .

[SarEl]

To be honest (and I am surprised at YOU for this!) you are living in a dream world. Suspension typically last this long and longer, and provided they are paid, it's not an issue. And I agree he cannot help it if collegaues phone him - but as I said, he can help it if he doesn't say "Sorry but I can't talk to you" and hang up! I know that this is a difficult thing to do but it is the only right thing to do. I have seen plenty of times when the employer wouldn't (or couldn't) have sacked for the incident which caused the suspension, but has sacked for the breach of the rules of suspension, and I am afraid that I wouldn't even attempt a case based on this - tribunals always uphold them. If you think about it objectively, it's the double whammy. He did something that was ill-conceived and foolish, albeit for the best of intentions, and which was technically (and sorry, I disagree with those here who think otherwise) theft from the employer (he took. or colluded in the taking of, something which did not belong to him, which he had no authority to take, and did not tell the employer that he had done it). There might have been some potential to put some cracks in there - cracks that didn't change what he had done but which might explain it reasonably. But what reasonably explains disobeying a direct and lawful (and commonplace!) instructions from the employer? Not one thing but two. And if he was prepared to disobey a direct instruction when it suited him, what makes it less likely that he might have stolen something when it suited him. That old "reasonable belief" is getting stronger.

 

I'm sorry - you know that this isn't a personal view I am putting - but it is a very reasonably constructed objective view. He has done himself immeasurable harm in this latest action.

[greendollar]

Harsh , VERY Harsh Sarah .......you've hung , drawn and quartered the poor fellow just for picking up the phone .

 

No need to be sorry , hopefully somebody will read the advice you give and not fall into the 'trap' as my friend has . I'm not sure how the telephone conversation went but can only hope for his sake that he did put the phone down .

[SarEl]

Yeah - I know. But any good barrister has to know the employers case before they can understand their defence. And this is not a good situation. So I sincerely hope he did hang up - and if so that the collegaue says he did and proves it (that would be a good use of the phone records!!!)

[Atlas01]

If I explain my reasoning this post would be war and peace so sorry but i don;t have the energy

 

From what you have said if the incident is 100% accurate the only option i see before the first hearing is complete honesty, no trying to pull their case apart with inconsistencies and potential collusion in witness statements (especially if you cannot prove it)

 

Come back if he gets sacked

 

What worries me is why there was no attempt to notify employer before suspension this had happened, that to me is the main concern

[greendollar]

Hi djhutch ,

 

Thank you for your input , yes it does seem strange that the witness / reporting manager both (?) who wish to remain annonymous didn't report the alledged ' theft ' immeadiately . They were seen , and it is admitted that they made no attempt to conceal what they were doing , to load the salt in full view of everyone and anyone .

The witness then went on to open the boot of the car and take a photo and then observed them drive off at the end of their shift with a car that was obviously ' weighted down '( the witnesses words) but then waited 3 weeks to report the incident . By then the salt had been returned unused .

My friend and his colleagues have been open and honest about their intentions but are confused as to why they remain suspended , they have explained what they were doing and have basically admitted what the witness has seen is correct so there can't be much to actually investigate .

[SarEl]

I wouldn't want to put words in dj's mouth, but I read his post slightly differently - and from the opposite point of view. Whilst I get the point you are making about the dealy in reporting it, I read this to say why didn't your friend report to his manager what he had done ebfore he got suspended - which is just as interesting a question!

[Atlas01]

your not putting any words in, that's exactly my point

[greendollar]

Doh , I see what what your getting at , as my friend sees it there was no need to go any higher over something that trivial . He's responsible for ordering and stocktaking of the salt supplies (among otherthings), he took the decision to OK its use to enable his colleagues to get too work during what was extreme weather conditions .

He also believes he has sufficient authority to sanction its use .

After chatting with him it seems that this manager was brought in to take some of the workload off my friend a couple of years ago and feels that my friend has undermined him as colleagues often turn to my friend ( as they previously worked under him and still do)rather than the manager with a variety of work related issues .

It has come to light that the colleagues were refused the use of the salt by the manager some days before then asked my friend when the manager wasn't there , he did sanction its use and it obviously got the managers back up ....... well you know the rest

[Atlas01]

Thanks green but the more i read the more i think the company will see this as theft.

 

If a more senior manager said no they obviously do not share his view, it is irrelevant what he thinks is ok, his employer disagrees, in addition the fact he is suspended means arguing he's able to make decisions without consulting more senior managers he is leaving himself wide open to be challenged on his competence and independence for his job.

 

Like everyone else here i'm on the employees side but if he is unable to satisfy the panel he was acting in the best interests of the company (please don't tell me he was aware the senior manager had said no before the incident) and able to mount a convincing argument why he chose not to notify his manager he had allowed the grit to be taken the company can dismiss him fairly in my view

 

From a neutral perspective this story reads as a guy who allowed company property to be used for private use without authorisation; by the fact the "witness" went to the extremes he did it also appears to be a no-no that is known, where the employees concealed the fact it had been taken.

 

This would be the start point a disciplinary panel would take imo.

[Mash It Up Harry]

Thanks green but the more i read the more i think the company will see this as theft.

 

If a more senior manager said no they obviously do not share his view, it is irrelevant what he thinks is ok, his employer disagrees, in addition the fact he is suspended means arguing he's able to make decisions without consulting more senior managers he is leaving himself wide open to be challenged on his competence and independence for his job.

 

Like everyone else here i'm on the employees side but if he is unable to satisfy the panel he was acting in the best interests of the company (please don't tell me he was aware the senior manager had said no before the incident) and able to mount a convincing argument why he chose not to notify his manager he had allowed the grit to be taken the company can dismiss him fairly in my view

 

From a neutral perspective this story reads as a guy who allowed company property to be used for private use without authorisation; by the fact the "witness" went to the extremes he did it also appears to be a no-no that is known, where the employees concealed the fact it had been taken.

 

This would be the start point a disciplinary panel would take imo.

 

Playing Devil's advocate here;

 

Just to add another spin to this, the manager feels constantly undermined by the supervisor, tips off sympathetic staff that others may go against his instruction not to remove the salt as he suspects that they may just take it anyway, then all of a sudden he has got a very easy way to dispense with an unco-operative supervisor.

 

The fact that the company have suspended those involved indicates that they are taking it very seriously. Seems the bigger picture here isn't the value of the items; this is more related to the working relationship the manager has with his supervisor.