This article was first published in the Trinidad Express Newspapers on August 9th 2019.
When an employer is contemplating disciplining an employee, of whatever status in the organization, from captain to cook, to deal with an internal charge of theft or fraud, he is not required to have available, as he would in a court of law, “Evidence beyond a reasonable doubt”. That is the standard of proof required of charges in a criminal court, where the person charged may receive a jail sentence.
An employer is neither a member of the constabulary nor of the judiciary. When an employer is faced with deciding on a case of theft within the organization, the maximum punishment is dismissal, not incarceration or the death penalty.
A disciplinary charge is a civil charge and what the employer requires as proof in such cases is evidence that reaches “a balance of probabilities”.
There is a vast difference. Do you remember the OJ Simpson case where he was charged with murder of his ex-wife? The case against OJ Simpson in the Criminal Courts was dismissed because, the evidence presented against him gave room for a measure of reasonable doubt. The strength of that evidence will always depend on the skills of the prosecution lawyers. Then O.J. was tried again in a civil court where on much the same evidence, he was found to be responsible for his ex-wife’s death.
It is important to remember that the lack of evidence of fraud is not the same as evidence of a lack of fraud. There could be several reasons why evidence was unknown or not presented: witnesses to the fraud may have refused to give evidence due to fear or complicity; or it could be that the Employer did not want the company’s brand tarnished by admitting that fraud or theft within its purview had gone on for so long undetected, as sometimes happens in banks and other financial institutions where the guilty person is encouraged to resign “for family reasons”.
Of major contention in such cases is often what weight should be given by an employer to an employee’s criminal conviction. Is the conviction alone sufficient to merit dismissal? Suppose the conviction is due to failure to pay family support? Or as in a recent instance, a DUI? If the offence took place outside the ambit of the employee/employer relationship, would the employer be justified in dismissing the employee?
In an Antigua case the Tribunal found a dismissal justified following an employee’s criminal conviction for drug trafficking outside of the employment relationship because it damaged the reputation of the company that imported products within which the drugs, unknown to them, had been hidden.
A classic and still often used ploy took place back in the 70’s in the then Woolworths Store on Frederick Street in Port of Spain, which was experiencing considerable “shrinkage”. Women clerks were required to leave their handbags in a room near the employees exit. The female toilets, however, were within the store itself, also in that area. The new head of security, a former police officer, stationed one of his female officers in the women’s toilets at closing time. When a saleswomen picked up her purse, then went back to the toilet area, the security guard stood on the toilet in a cubicle adjoining the one the saleswoman had gone into and saw the saleswoman retrieve a bag of Woolworths’ goods from behind the sanitary napkin bin and exit the washroom.
The guard followed her and when she has exited the store, and signaled to the Head of Security standing by who then stopped her, searched the bag, found the stolen articles and called the police who arrested her for theft. The employee was dismissed on the disciplinary charge of “unauthorized possession of company property”. Several months later, the theft case went to the Magistrate’s court and was dismissed because the evidence, last seen in Police custody, had disappeared, apparently “eaten by rats”.
The union representing the employee immediately took the refusal of the company to re-employ the woman to the Industrial Court claiming Unfair Dismissal as the Criminal case of theft had been dismissed. In its judgement, the Industrial Court noted that she had not been dismissed on the criminal charge of “Theft”, but on the disciplinary charge of “unauthorized possession”, supported by the reasonable and believable testimony of a “witness of truth”. It made the classic statement: “A person cannot escape the consequences of their own actions.” The dismissal and failure to re-employ was upheld.
In the judgement in a notable case between OWTU and Lever Brothers, The Industrial Court noted: “It is now well settled that the acquittal or conviction of a worker of a criminal offence by a magistrate is irrelevant and does not affect the jurisdiction of this court in a trade dispute concerning his dismissal. We are not bound by the findings and/or order of a magistrate because the issues for determination are different. In the case of criminal proceedings, the magistrate is required to determine whether the employee has committed a criminal offence. The central question which this court must decide, in all trade disputes concerning the dismissal of a worker, is whether the worker’s dismissal was, in all the circumstances, harsh and oppressive or not in accordance with the principles of good industrial relations practice”.
In this case the dismissal of the employee was upheld as well.