Employees, due to their professional duties, have access to the funds and property of the organization. Some unscrupulous persons seek to deliberately turn the property of an enterprise to their advantage. In this case, dismissal for theft should follow .
Examples clearly prove that not all employers know how to carry out the mentioned procedure correctly. As a result, the attacker is restored to his previous position through the court.
In addition, in a number of cases, he is additionally compensated for material and moral damage associated with the illegal termination of employment relations. Therefore, it is important not only to identify the fact of theft or waste of company assets, but also to correctly prepare the necessary documents. The proposed material will help with this.
Features of dismissal for theft
In paragraphs "d" clause 6 of Art. 81 of the Labor Code of the Russian Federation states that a manager has the right to terminate an employment contract if an employee commits theft of someone else’s property, embezzlement, intentional damage or destruction of valuables. The employee's consent to dismissal is not required.
What other features are important to consider:
- It is impossible to do without a court verdict. Even if the subordinate confessed to the theft and spoke about it in an explanatory note, from the point of view of the law, his guilt has not been proven. An employee is considered guilty if there is a court ruling or sentence that has entered into legal force.
- Dismissal is possible only for theft in the workplace. If an employee stole something outside such a place, the contract with him cannot be terminated. The address of the workplace must be reflected in the employment contract.
- The theft must be committed intentionally. If an employee simply confuses his own item with someone else’s, he cannot be fired.
- The manager has the right to terminate the contract regardless of who owns the stolen material assets: him, the organization, other employees.
Theft of an employer's property is the secret theft of other people's valuables, committed with intent. For example, an employee may be fired if he stole money from the cash register, equipment, raw materials, valuable documents, clothing, or tools for work.
Example: A woman worked as a salesperson in a store, and a financial liability agreement was signed with her. Despite this, she stole money from the cash register for several weeks. The employer discovered this based on the results of the inventory, then looked at the recordings from CCTV cameras, where it was clearly visible that it was the seller who took the money.
The director contacted the police regarding the theft. Based on the results of the investigation, the case materials were transferred to the court, and a guilty verdict was issued. Having received a copy of the verdict, the manager fired the former employee under paragraphs. "d" clause 6 of Art. 81 Labor Code of the Russian Federation.
Who can't be fired
There are certain categories of employees who cannot be fired:
- A pregnant employee (Article 261 of the Labor Code of the Russian Federation).
- An employee on paid annual leave, sick leave, or maternity leave. You need to wait until he goes to work and only then terminate the contract.
Note: You cannot fire a person who has already been subject to disciplinary action for a similar act. You cannot be punished twice for the same thing (Article 193 of the Labor Code of the Russian Federation).
What is the deadline for dismissal?
The established period for applying such a disciplinary measure as dismissal for theft is one month from the date the resolution or sentence enters into legal force. This period does not include the time the employee is on sick leave, on vacation, or absence from the workplace for other reasons (clause “c” of paragraph 34 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts ...”).
Why do employees steal and how do they succeed?
Some people will never steal because their moral convictions prevent them from doing so. People with more flexible ethics decide to steal when several factors coincide:
- dissatisfaction with your salary,
- open access to goods and other valuables,
- imperfection of the accounting system, due to which theft and the identity of the thief are not immediately detected.
If your company's actual profits differ markedly from forecasts, for the worse, take a closer look at your employees. Perhaps the most dishonest of them have more than once resorted to one of these ways to get rich right in the workplace.
Bought goods at inflated prices
This is what scammers who are entrusted with procurement do. It works like this: let’s say a businessman opened a cafe and instructed his employee to search for suppliers of some products. The employee turned out to be dishonest, as was the supplier, and as a result of their collusion, the cafe owner will pay 2,000 rubles per unit of goods, which rightfully costs a third less. The difference in price will be shared by the employee and the supplier.
Indicated the wrong quantity of goods
Another variant of collusion is intentional errors in invoices. If the goods arrive in large quantities, from hundreds of units, it is not so difficult to indicate in the documents a different quantity and, accordingly, the cost.
For example, an employee who is responsible for receiving goods at a warehouse is tasked with ordering 120 boxes of cat food, each containing 24 cans. Thus, 2,880 canned goods should arrive at the warehouse. But the employee asks the equally dishonest supplier to indicate 2,980 in the invoice and issue an invoice for the required amount. In fact, 2,880 units of goods arrive at the warehouse, according to documents - a hundred more. The non-existent 100 canned goods are written off as defective, and the overpayment is divided between the store employee and the supplier.
Barcodes were re-glued
A simple method of theft: re-stick barcodes from cheap goods to more expensive ones and sell them to “your own” - customers with whom the dishonest employee is in cahoots. Even if someone suddenly sees a cashier punching the wrong item, it will be impossible to prove that the barcode was deliberately pasted over.
Not all products were scanned
Another scheme that requires “its own” buyer. He brings several identical goods to the checkout, and the cashier scans and punches only one in the receipt. Even if you catch a fraudster in the act, he can always say that the scanner simply did not read the other barcodes and it is not his fault. But he cannot scan products and at the same time monitor whether they are displayed correctly in the shopping list. After all, no one needs queues at the checkout.
Replaced goods with cheaper ones
A popular scheme in stores that sell bulk products by weight. An unscrupulous seller may replace expensive, high-quality spices or tea with cheaper ones. It is not always possible to determine a substitution by appearance. And even if there is a meticulous buyer who suspects something is wrong, the seller will throw up his hands: what arrived at the warehouse is displayed on the sales floor.
Products were written off ahead of time
Products whose consumer properties may deteriorate over time must have an expiration date indicated. These are food products, cosmetics, perfumes, medicines, etc. An unscrupulous seller may mark something that he decided to take for himself for free as subject to write-off, although everything is in order with expiration dates and presentation.
They made their own assessments
The seller adds an expensive item to the markdown section in the simplest commodity accounting system that he wants to buy himself at a good discount. Naturally, the store management did not plan such a markdown. As soon as the discounted product leaves the warehouse, an interested employee immediately buys it.
Some sellers deliberately spoil or crumple the packaging, or cause non-critical damage (for example, scratching) in order to have a basis for a discount and subsequent repurchase. This scheme also works in the opposite direction, when a dishonest employee sells discounted goods at the price that existed before.
The check was closed after payment
Works in the case of inattentive customers who pay in cash and leave without waiting for the check to be issued. The cashier enters his personal discount, closes the receipt, and takes the difference in price for himself.
Additional items included in the check
This fraud scheme is also designed for buyers who take many goods at once, pay for them, but do not check receipts and do not collect them. The cashier can check the same product twice or add a product to the check that the buyer did not take, and after the latter leaves, make a check for cancellation and pocket the money.
It is possible that the fraudster will come across a meticulous buyer who, at the risk of incurring the wrath of the line at the checkout, will check the receipt. But the risks of punishment here are low: you can always refer to a system error and issue a refund.
"Rented" goods
If you only need an expensive item for a couple of times, is it worth buying it? No, of course not, you can just take it and use it. This is how dishonest salespeople in clothing or equipment stores argue. Tried and tested outfits and gadgets are returned to the hall and continue to be sold at the price of new goods.
Responsibility for theft at work
For petty theft, a person can be charged under Part 1 of Art. 7.27 of the Code of Administrative Offenses of the Russian Federation, if the value of the stolen property does not exceed 1,000 rubles. He faces a fine of up to five times the value of the valuables, but not less than 1,000 rubles. They may also be assigned compulsory labor for up to 50 hours or arrested for up to 15 days.
If the value of the property is above 1,000 rubles, but not more than 2,500 rubles, they are punished under Part 2 of Art. 7.27 Code of Administrative Offenses of the Russian Federation. The minimum fine is 3,000 rubles, but they may be sentenced to compulsory labor for up to 120 hours or arrested for a period of 10 to 15 days.
They are brought to administrative responsibility for theft and petty fraud if there is no corpus delicti. If there is one, the punishment is much more severe. Usually the suspect is accused under Art. 158 of the Criminal Code of the Russian Federation, where actual imprisonment for up to two years is possible. In this case, instead of a decision on bringing to administrative responsibility, a sentence is passed.
How to correctly formalize the dismissal of an employee: procedure and features
Dismissal of a pensioner at his own request - features and procedure
Distinction from related crimes
It is important not to confuse this crime with others that may be similar to it. For example:
- seizure of someone else's property or money if there is a real or alleged right to it (the accountant took the amount of his salary from the amount of money accountable to him);
- the objects were seized from the owner, but part or all of the money received for them was returned to him or remained with him in violation of regulatory legal acts;
- temporary use of someone else's property without its subsequent sale.
These acts can be qualified under other articles of the Criminal Code of the Russian Federation: 330, 201, 285, 165 or 166.
How to fire an employee for theft: step-by-step instructions
Before registering your resignation, it is advisable to familiarize yourself with the entire procedure step by step. This will avoid mistakes and reduce the likelihood of the employee challenging the order to terminate the contract.
What an employer needs to do:
- Draw up an act upon detection of theft.
- Contact law enforcement agencies.
- Request an explanatory note from the employee.
- Wait for the results of the case and receive a copy of the verdict.
- Issue an order for dismissal.
- Make an entry in the work book.
- Fill out your personal card.
- Provide the employee with documents and invoices.
Let's look at each step in detail.
Step 1: drawing up an act
Having identified the fact of theft at an enterprise, you need to immediately draw up a report about it, even if the culprit is not yet known. The police will be involved in identifying the culprit.
What is stated in the act:
- Name of the organization;
- Full name, position of manager;
- the circumstances under which the theft was discovered;
- Full name, positions of other employee-witnesses;
- approximate amount of damage;
- signatures of the director and witnesses.
At the same time, the employer issues an order to conduct an internal investigation and appoints a person responsible for this.
Sample act
Step 2: contacting law enforcement agencies
After making sure that there is no stolen property, the manager or other authorized employee must immediately contact the police. This can be done by calling “102” from a mobile phone, or by calling directly to the department at the location of the organization.
You'll have to write a statement. All witnesses will be interviewed on the spot and video footage will be taken. If large valuables are stolen, they should look at the recordings from the nearest CCTV cameras where the employee might have been caught.
A criminal case is initiated, and upon completion of the investigation, the materials are transferred to the prosecutor's office and the court.
Step 3: requesting an explanatory note
If a suspected theft is found, you need to request an explanatory note from him. It is provided within two working days.
Note: refusal to provide written explanations does not prevent dismissal for theft. But it is necessary to draw up an act of refusal and attach it to the rest of the documents.
Sample explanatory note
Step 4: Obtain a copy of the judgment or court order
According to Art. 312 of the Code of Criminal Procedure of the Russian Federation, a certified copy of the verdict is issued to the victim within five days after the proclamation. It is enough to send a petition to the court.
Step 5: placing an order
The form of the order was approved by the Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 “On approval of unified ...”. You can use the T-8 form or a sample approved by the enterprise.
What information is indicated in the order:
- date, number;
- Business name;
- Full name, position of manager;
- Full name, department, position of the person being dismissed;
- date, number of the contract being terminated;
- the wording “a one-time gross violation of labor duties by an employee - the commission of theft at the place of work, established by a court verdict that has entered into legal force, subparagraph “d” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation”;
- basis document – resolution or sentence (date, number);
- signatures of the parties - employee and employer.
The employer must know not only which article to indicate in the order and other documents, but also the specifics of determining the date of dismissal. According to Art. 84.1 of the Labor Code of the Russian Federation, the employee must be dismissed on the last working day when he actually performed his duties. The order is drawn up later and is dated by a real date.
Step 6: making an entry in the work book
The entry into the labor record is made by the employer or personnel officer. The wording must indicate “the employment contract was terminated at the initiative of the employer due to the employee committing theft at the place of work, subparagraph “d” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation.”
Step 7: filling out a personal card
If a paper record is kept, upon receipt the employee signs the personal card. If he abandoned the paper one in favor of an electronic work record, the information on the card is entered based on information about his work activity.
Step 8: issuance of documents and payment
The dismissed person must be given a pay slip, a paper work certificate, a certificate of average earnings, and information about insurance contributions. Compensation is also paid for all unused vacation days and wages for time worked.
If an employee does not come for documents, you need to send him a notice to the registration address about the need to come for them, otherwise the directors may be held accountable for violating the deadlines for issuing the work book and certificates.
Objective and subjective sides
The objective side of theft at an enterprise is determined by the criminal’s secret actions in the material world, the purpose of which is the seizure of property and their sale in favor of the offender or third parties.
The subjective side is expressed in direct and very specific intent. This means that the person who committed this act was well aware that he was stealing someone else’s property and thereby causing damage to the owner.
The subject of the act is a sane citizen who has reached the age of 14.
The motive for this offense is purely selfish, that is, the theft is necessarily committed with the aim of subsequent sale of property. If it was not carried out for this purpose, then the corpus delicti of the offense itself will be absent.
What to do if you were fired for illegal theft
Most often, there are cases when an employee is suspected of theft and fired under paragraphs.
"d" clause 6 of Art. 81 of the Labor Code of the Russian Federation, but without the involvement of law enforcement agencies. There is no court order or verdict, which means the contract is terminated illegally. The employee can subsequently appeal the employer’s actions by filing a claim with the court at the location of the organization or at his own address. If the court reveals a violation of the procedural order or the rules for drawing up documents, the defendant will be obliged to reinstate the plaintiff in his position or fulfill other claims:
- Pay compensation for forced absence or moral damage.
- Change the wording of the dismissal.
If the dismissed person was not given a work book, he has the right to demand in court to oblige the defendant to issue it.
If money is stolen
A cashier or accountant often becomes involved in the theft of a company's finances. Money is embezzled by forging signatures on checks and payment documents.
What is the penalty for shoplifting by a cashier? In this case, Article 158 of the Criminal Code of the Russian Federation applies for theft of funds at work, as well as Art. 160 of the Criminal Code of the Russian Federation – Misappropriation and embezzlement. It all depends on the crime.
To bring the culprit to criminal liability, the company must prove that the person had access to cash flows.
For example, the corresponding responsibilities must be determined by the workplace, job description, and salary regulations.
If an employee is unfairly accused of embezzling money at work, he must build the right defense. And the lawyer of the accused will provide assistance with this.
In particular, through joint efforts it will be necessary to find out whether the employee had access to finance and whether he had the authority to sign financial documents.
In addition, you need to clearly understand when exactly the loss occurred. The construction of the correct line of defense will also depend on this.
For example, if funds were stolen from the cash register of an enterprise at a time when the cashier was not there, then the defense attorney will certainly take this argument into account.
Lawyer's answers to private questions
Can an employee be exempt from criminal liability for theft in the workplace?
Yes. Based on Art. 76.2 of the Criminal Code of the Russian Federation, exemption from liability is allowed if the crime was committed for the first time, and the perpetrator compensated for the losses voluntarily. At the same time, the employer has the right to terminate the contract with him anyway: it is believed that exemption from criminal liability does not in itself entail exemption from other measures of liability, including disciplinary and civil law.
They accuse me of theft and want to fire me. What to do?
If the employee is truly innocent, there is no need to worry. Without evidence, the court has no right to pass a guilty verdict. If the employee really stole the property of the organization or personnel, it is easier to resign of his own free will before the start of court proceedings.
What to do if the conviction has already been passed and has not entered into force, but the employee wants to resign on his own and has submitted an application?
Dismiss him at his own request, and not under an article for theft. By law, the employer is obliged to issue all documents and pay no later than the last day of work, even if the sentence has not yet entered into force. The wording in the work book will be different, with reference to clause 3, part 1 of Art. 77 Labor Code of the Russian Federation.
How to issue documents to an employee if he is sentenced to imprisonment for theft?
It is necessary to draw up an act on the absence of the employee from the workplace in connection with a sentence of imprisonment, then send a notification to his address about the need to appear for documents or give written consent to send them by mail.
I quit of my own free will, and after a while the director calls and accuses me of theft. Can I be fired later for theft after the fact?
No. If guilt is indeed proven, only administrative or criminal liability is faced. The entry in the work book does not change.
Most common mistakes
Mistake #1. Concluding an oral agreement on compensation for damages.
All actions between the parties here must be formalized in the form of a written agreement. Oral agreements have no legal force.
Mistake #2. Failure to request an explanation from an employee, even when the picture is clear and his direct guilt is visible.
By law, the director is obliged to demand an explanation from the suspect. The absence of a note and the opportunity to explain the situation on one’s part infringes on the rights of the employee.
Arbitrage practice
If we consider interesting, and most importantly, illustrative cases at enterprises, then one of the most famous occurred in Moscow.
In a company that produced exclusive perfumes, there was a citizen who was involved in packaging batches.
Every time she came to work with a thermos and left with it.
Many thought that this was how a woman was trying to keep warm in the winter, but one day the company found out that a large amount of perfumes were not getting into bottles every week. It turned out that the woman was carrying perfume in a thermos.
It didn’t take long to prove guilt - the employee was caught red-handed and the police were called.
The woman is currently serving a suspended sentence.
Another incident occurred in the St. Petersburg office.
One of the managers was stealing office supplies, and when the amount of things he stole reached one hundred thousand, the managers contacted the police.
The culprit paid a fine of one hundred thousand rubles.
Unfortunately, thefts occur everywhere and we are unable to influence their number to decrease.
We just have to be careful and keep an eye on those around you.
Be vigilant and you will never become a victim of theft.
