Criminal law
Accused of stealing from your employer
Two processes start at once and they pull in opposite directions. Cooperating fully with your employer’s investigation is usually what saves the job, and it is frequently what destroys the defence, because whatever you say in that meeting goes to police. Most people come to a lawyer after the meeting. The useful time is before it.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Our lawyers include former prosecutors. We handle the criminal charge and the employment consequences in the same office.
On this page
Two processes at once The internal investigation The charges Your job Repayment and recovery Defences What follows Common questions
Two processes, pulling in opposite directions
Almost nobody in this position is dealing with one problem. There is an employer running an internal investigation on its own timetable, and there is a police investigation that may not have started yet. What helps you in one can be fatal in the other.
The employment process
Decided on the balance of probabilities, quickly, by people who have already formed a view. Cooperation, explanation and remorse are what preserve the job. Refusing to participate can itself be a valid reason for dismissal.
The criminal process
Decided beyond reasonable doubt, slowly, by a court. You are not obliged to say anything, and in most of these matters the prosecution’s best evidence on dishonesty is the account the accused gave to their employer weeks earlier.
You cannot optimise for both without thinking about it first. Sometimes the right call is to participate carefully and in writing. Sometimes it is to decline and accept the employment consequence in order to protect the criminal position. Which of those applies depends on the strength of the allegation, whether police are already involved, and what you actually did. That is the decision worth taking advice on, and it has to be made before the meeting.
The internal investigation
These follow a pattern. A discrepancy is found, an audit is run, you are asked to attend a meeting to “help clarify something”, and you are asked to explain, sign a statement, or acknowledge an amount.
What to understand about that meeting
- There is no privilege. Nothing you say to your employer is confidential from police. Investigation notes, recordings, statements and signed acknowledgments are handed over routinely and tendered in court
- A direction to attend can be lawful and reasonable, and refusing outright can be a valid reason for dismissal in its own right. That is different from being obliged to answer every question put to you
- You can usually ask for the allegations in writing, for time to respond, and for a support person to be present. A properly conducted process is required to give you those things, and asking for them is not an admission
- Signing an acknowledgment of an amount is an admission, and the amount is almost always calculated from assumptions rather than reconciled records
- Do not delete anything, from a work device or your own. It will be recovered and it converts an arguable matter into an indefensible one
- Preserve your own material now. Rosters, approvals, messages, emails showing an arrangement was authorised. Access to work systems is usually cut on the day you are stood down, and everything on the other side of that door becomes unavailable to you
The single most useful thing you can do is get advice before you respond. Not after the meeting, not after the statement is signed. A response prepared with a lawyer, in writing, can protect the employment position and the criminal one at the same time far more often than an unprepared conversation can.
The charges
Where the taking happened in the course of employment, two older offences apply and both carry ten years rather than the five that ordinary larceny carries.
| Charge | What it covers | Maximum |
|---|---|---|
| Larceny by a clerk or servant | Stealing property that had already come into the employer’s possession. The stock room, the till at the end of the day, tools, materials, goods on the floor | 10 years |
| Embezzlement by a clerk or servant | Taking property received on the employer’s behalf, before it ever reaches them. A customer hands over cash and it goes into your pocket rather than the register | 10 years |
| Fraud | Where deception was used rather than simple taking. False invoices, altered records, unauthorised transactions, inflated expense claims, payments to an account you control | 10 years |
| False accounting, or destroying records | Altering, falsifying, destroying or concealing records with intent to obtain an advantage. The outcome does not have to have occurred | 5 years |
The distinction between larceny and embezzlement by a clerk or servant turns on whether the money reached the till first. It rarely changes how serious the allegation is, but it determines which charge is correct, and a charge that does not fit the facts is one worth challenging.
Where money went missing over a long period in small amounts, the prosecution can charge the whole deficiency as a single offence rather than proving each transaction. That is how most long-running matters are run, and it is why the alleged total is often the most productive thing to attack. Reducing the figure changes which court hears it and where the sentence lands.
These matters are usually finalised in the Local Court, where the ceiling is two years, but an election to the District Court is a real prospect where the amount is substantial, the conduct extended over a period, or a position of trust was abused. More on fraud charges. More on larceny.
Your job, and the deadlines nobody tells you about
Theft or fraud, if established, is generally serious misconduct, and serious misconduct allows summary dismissal without notice. But whether the conduct occurred and whether the process was fair are separate questions, and an employer can be wrong about the first or careless about the second.
- A dismissal has to have a valid reason and a fair process. That means being told the allegations, given a genuine opportunity to respond, and allowed a support person. Employers under pressure regularly skip parts of it
- An unfair dismissal application must be lodged within 21 days of the dismissal taking effect. So must a general protections application. Those are hard deadlines and extensions are rare
- Twenty one days is far shorter than the criminal matter, which will still be running many months later. Waiting to see how the charge resolves before dealing with the employment side means the employment claim is gone
- Being stood down is not the same as being dismissed. The clock does not start until the dismissal takes effect, but the distinction matters and is worth getting right
- Withholding your final pay is generally not permitted. Deductions require written authorisation and must principally benefit you. An employer cannot lawfully help itself to your wages or entitlements to cover an alleged loss
Where your role requires a licence, a registration or a Working with Children Check, the regulator runs a third process on a different standard again, and disclosure obligations may be triggered by the charge rather than by any conviction.
Repayment, and the demand for it
Repayment carries more weight in these matters than in almost any other area of the criminal law. It is also capable of being presented as an admission if it is done without thought about how it will look.
- Repaying does not make the charge go away. A complainant cannot withdraw a criminal charge and police are not obliged to discontinue because a debt has been settled
- It does influence whether a charge is laid at all in some matters, and it carries real weight at sentence where a charge is laid. The timing and the framing are what determine which effect you get
- An offer to repay in exchange for police not being involved is a proposal you should not respond to without advice. Depending on how it is put, it can raise serious questions about the employer’s own conduct
- Civil recovery is separate. An employer can sue for the loss regardless of what happens in the criminal court, and a criminal conviction makes that claim much easier for them. The two proceedings interact and should be handled together
- The amount is usually arguable. Alleged deficiencies are commonly calculated from assumptions, extrapolated from a sample period, or built on a spreadsheet nobody has reconciled against actual records
Defences and arguments
It was authorised
An arrangement you believed had been approved, a practice everyone in the workplace followed, a manager who signed off verbally and now does not recall it. Extremely common, and it goes directly to dishonesty.
No dishonesty
Poor record keeping, disorganisation, a genuine mistake, a system nobody understood. Dishonesty is assessed by the standards of ordinary people, and ordinary people do not regard incompetence as theft.
Claim of right
An honest belief in a legal entitlement to the money. It does not have to be reasonable or correct. It arises constantly over unpaid commissions, expenses, overtime, and money in family businesses.
It was not you
Shared logins, delegated access, a till several people used, a system with no individual audit trail. Attribution has to be proved, not assumed from who was rostered on.
The amount is wrong
Not a defence, but usually the most valuable work in the matter. It drives which court hears it, where the sentence lands, and what any civil claim is worth.
The wrong charge
Larceny where it should be embezzlement, a clerk or servant charge where the employment relationship does not fit, or a fraud charge where no deception was used.
Where a gambling disorder, a mental health condition or coercion within a family business is involved, that is relevant both to how the matter is dealt with and to sentence, and in the Local Court it may open the way to a treatment plan rather than a conviction. It needs expert evidence obtained early.
What follows a conviction
Most of these matters are finalised in the Local Court and most do not result in full-time custody. What drives a matter into that group is the amount, how long it ran, whether a position of trust was abused, and whether anything has been repaid. Large, sustained thefts from an employer do attract custodial sentences.
The conviction usually costs more than the sentence:
- A dishonesty conviction is disqualifying in any role involving money, stock, client funds or trust, which is the category employers screen for most closely
- Professional registration and licensing in accounting, financial services, law, real estate, security, aged care and health
- Visa and citizenship character requirements, and travel to some countries
- A civil judgment for the loss, which survives the criminal matter entirely
Three things carry real weight at sentence and all take time to assemble: repayment or a credible plan for it, evidence addressing why it happened rather than an assertion of remorse, and a demonstrated period of stability since. General deterrence weighs heavily where a position of trust was involved, so the subjective case has to be built properly rather than asserted on the day.
We also advise employers on conducting investigations properly, though not both sides of the same matter.
Common questions
My employer wants me in a meeting tomorrow. Do I have to go?
A direction to attend can be lawful and reasonable, and refusing outright can be a valid reason for dismissal. That is not the same as being obliged to answer every question. You can usually ask for the allegations in writing, for time to respond, and for a support person. Get advice today rather than after the meeting, because what is said there goes to police.
Is what I say to my employer confidential?
No. There is no privilege. Investigation notes, recordings, statements and anything you sign are handed to police as a matter of course and tendered in court. In most of these prosecutions the strongest evidence on dishonesty is the account the accused gave their employer weeks before any charge.
If I pay the money back, will they drop it?
Not by itself. A complainant cannot withdraw a criminal charge. Repayment does sometimes influence whether a charge is laid, and it carries real weight at sentence, but how and when it is done decides whether it helps you or is presented as an admission. Take advice before paying anything.
They said if I repay it they will not go to police.
Do not respond to that without advice. Depending on exactly how it is put, it can raise real questions about your employer’s conduct, and it is not a proposal to accept or refuse on the spot.
I have been dismissed. Should I deal with that now or wait for the criminal matter?
Now. An unfair dismissal or general protections application must be lodged within 21 days of the dismissal taking effect, and extensions are rare. The criminal matter will still be running many months later. Waiting for it means the employment claim is gone, and the two need to be run consistently with each other.
My employer is withholding my final pay.
That is generally not permitted. Deductions from wages or entitlements require your written authorisation and must principally be for your benefit. An employer cannot lawfully help itself to what it is owed out of what it owes you.
The amount they say I took is wrong.
Then that is the first thing to deal with, and it is usually the most valuable work in the matter. These figures are commonly extrapolated from a sample period or built on a spreadsheet nobody has reconciled. The amount drives which court hears it, where the sentence lands and what any civil claim is worth, so it needs fixing before a plea rather than after.
Will I go to gaol?
Most of these matters are finalised in the Local Court and most do not result in full-time custody. What moves a matter into that group is the amount, the duration, the abuse of trust and the absence of repayment. Large, sustained thefts in a position of trust do attract custodial sentences and it would be dishonest of us to suggest otherwise.
What should I bring to a first appointment?
Anything your employer has sent you, including the allegations, any show cause letter and any notes of a meeting. Your contract and position description. Any court attendance notice or police fact sheet. Whatever records you have of the transactions in question, and anything showing an arrangement was authorised. If your system access has been cut, tell us straight away.
Call before the meeting, not after it
The decision that shapes both the criminal matter and the job is made in the first week, usually by someone who has not had advice. If you have been stood down or asked to explain a discrepancy, speak to us today.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. Courts we appear in.