May 26, 2012
Believe me when I say, there is just no premium in being a mute or willing accomplice to misdemeanour and fraudulent acts! Gone are the days of gallant heroes, who valiantly go to the gallows to atone for the crimes of another, whom they love or respect! Fiction abounds with them and sets examples of maintaining the stiff upper lip and complete confidence! There is no sense in getting carried away because real life is much more hard than any ‘Tale of Two Cities’, any given day!
Acts of Derivative Misconduct:
Are you afraid of being labelled a ‘tattletale’? Do you feel there is no sense in getting involved because, at the end of the day, it does not affect you either way? Were you given a strong warning by the rule-breakers to stay clear, or else…? But, you must know that your primary duty is to your employer alone and you cannot benefit yourself or watch another person benefitting at the ‘employer’s expense. You cannot transgress company policy either.
You can actually invite fair dismissal for witnessing, but not informing the employer/manager of acts, and lose all trust and damage your own standing with the employer when you withhold the information or fail to report acts such as:
- Any act which is prohibited by the company policy, like accessing certain sites which are expressly prohibited by the IT policy (which also specifies that you must report such acts, should you happen to see them happening),
- You see someone clocking in or out on another colleague’s behalf, in contravention of the company’s rules in this regard,
- A fraud or theft perpetrated by a colleague against the employer or the customers of the organization, which you have noticed or detected, but escalated to none,
- If the rule-breaker remains unidentified due to a lack of cooperation from you to deliberately shield the offender, in spite of having complete knowledge of the situation.
- See anyone indulging in prohibited acts of insider trading; using information obtained in the course of one’s duties or employment.
Except in cases where employers were applying a team misconduct theory to all the workers in a team, without bothering to define or establish the individual liabilities of the team’s members; courts deem it appropriate for employers to dismiss such employees in a summary fashion.
Employers’ Rights and Duties:
An employee would need to be assured of some security and sense of safety in escalating such issues. I know This 40 billion conglomerate I know set a very strong ethics policy in place and enforced a yearly discipline of online training followed by a test for all employees. There was an Ethics Helpline which promised anonymity. But, the senior managers at at least one particular location were corrupt to the core and enjoyed a free reign. This was because every complaint was sent right back to them, by the head office, for investigation and resolution. Anyone who protested had to leave or get fired – by a brilliant process of doctored 360 degree feedback reports against that person. This coterie continues at the helm, with total impunity.
When setting internal polices to govern the conduct of employees, an employer can be guided by events that happened in the past within the organization or with other companies in the same industry. While the banking industry needs to be extremely cautious about being defrauded by innovative (and fraudulent) accounting practices like Nick Leeson whose escapades brought down the Barings Bank; or the infusion of cyanide into Johnson & Johnson’s capsule medicine Tylenol which led to the death of 7 persons. Catching the culprits is as important as the window of time in which it is achieved. Just imagine what difference it would have made – if someone was on hand to observe these acts and helped to stop them!
In setting the internal processes, an employer has the duty to ensure that an employee who reports on such misconduct at any level is protected against possible adverse action, demotion or termination – in retaliation.
On the other hand, when an employer is faced with employee misconduct leading to losses for the business, the employer may ascertain and establish the actions of the various employees and make efforts to identify:
- The physical performance of the criminal acts and the actual perpetrators,
- Whether the team members are equally liable for the act,
- Whether they are shielding the original perpetrators by their silence, and refusal to assist the employer,
- Whether or not their association with the criminal act is by active choice and design.
The employer will have to establish individual responsibility for the misconduct being punished for each of the employees to unquestionably exercise the right to dismiss any of them.
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.