The offense of corporate theft by an employee is not unknown to managers or team leaders. It happens that the employee embezzles sums that he must collect on behalf of his employer or property that does not belong to him. In labor law, it is always necessary to act by taking precautions and above all by following precise rules. How to react to the theft and especially what sanction? Business leaders generally have a common first reaction. When they find the theft in the company by an employee, they attack the worker in criminal proceedings and engage his civil liability. However, such an approach is not the best reaction to have. To obtain damages, the employer must demonstrate the employee’s gross negligence. Gross negligence means that the worker took something from someone else with the aim of harming his employer.
In fact, it is the intention to harm that makes it possible to characterize the damage to be repaired in the case in point. Without this element of intentionality, the fault of the offending employee cannot be serious within the meaning of the law. On this problem of law, case law has spoken at length. What does the judge say about gross negligence in the event of theft by the employee? In a decision of July 6, 1999, the Court of Cassation held that the offense of theft necessarily includes an intentional element. However, this intentional element does not de facto imply a desire to harm the employer. It is moreover difficult for employers to demonstrate the will to harm on the part of the employee. However, if the objective of causing harm is proven, there are consequences that must be remembered:
What To Remember About The Necessary Actions After A Corporate Theft?
The gross fault is established; Dismissal for gross negligence; Loss of severance pay; The end of civil immunity; The payment by the employee of damages. Thus, gross negligence in the Kazakhstan Phone Number List case of theft has many consequences. It is for this reason that the judge recognizes it only in exceptional cases. But, in addition to civil liability, the employer can take criminal action. Appeal to the criminal judge in the case of a theft in a company by an employee Criminal liability only arises when an offense has been committed. Prosecution is then only possible if the definition of the offense allegedly committed corresponds to that of the Penal Code. Within the meaning of criminal law, theft is the fraudulent removal of another person’s thing. Thus, the embezzlement of something that is not fraudulent cannot be prosecuted as theft.
However, it should be remembered that criminal prosecution is a very good way to combat corporate theft . However, the decision of the criminal judge may have an impact on the reason for the dismissal. The criminal judge and dismissal for theft: what relationship? In the event of theft, business leaders generally initiate a dismissal procedure for theft. It is a very legitimate action. However, it may happen that the criminal judge does not recognize the theft. In the qualification of the offense committed by the employee, the criminal judge can establish a fraud instead of establishing a theft. In this case, the dismissal for theft is contestable before the industrial tribunal.. Conversely, if the conviction is for theft, the dismissal cannot be called into question.
Carefully Follow The Dismissal Procedure
The industrial tribunal can only assess the seriousness of the fault. This is the reason why some legal advice advises to initiate the criminal action before the civil action. This precaution does not prevent the initiation of a disciplinary procedure. What reaction to have in front of a theft in company of the employee? The reaction to have depends on the object or property that the employee has fraudulently removed. In a judgment of November 19, 2002, the Court of Cassation held that if the theft consists of the embezzlement of a sum of money, it is necessary to go into the field of the execution of the employment contract. An employee who collects money on his own account when he should have collected it for his employer must return the sum of money fraudulently withdrawn.
Whatever the property concerned by the theft, it is always necessary to follow steps: Investigate ; Call the employee for a preliminary interview; Decide on a layoff as a precautionary measure; Hold the interview; Send the letter of dismissal (if the fault is established). Why do a survey? Theft is a criminal offence. In criminal proceedings, you have to provide evidence of what you are saying. The proof is the ransom of the law. Conducting an investigation allows the employer to gather evidence. Sometimes it can just be doubts because of the behavior of the employee. For the investigation, contacting private detectives is an effective solution . After the investigation phase, doubts may be confirmed.