If you have been accused of stealing from your employer, there are a range of criminal charges which could potentially be brought against you. In Victoria, those charges are typically:
- Theft (s74 Crimes Act 1958); or
- Fraud
- Obtaining property by deception (s81 Crimes Act 1958); and/or
- Obtaining financial advantage by deception (s82 Crimes Act 1958).
The facts and circumstances of the matter will determine which criminal charge/s the police choose to lay.
In this article, our team of specialist criminal lawyers will explain the difference between theft and fraud in relation to stealing from your employer. We will also answer some questions that commonly arise in such matters.
Please note that this article is not legal advice. It only presents general information.
Criminal Offences - Stealing From Your Employer
Theft
If you are accused of stealing from your employer, you may be criminally charged with theft (s74 Crimes Act 1958).
In Victoria, a person can only be found guilty of theft if the prosecution can prove beyond a reasonable doubt that the accused:
- Dishonestly appropriated property belonging to another person (e.g. the employer); and
- They did so intending to permanently deprive the person of that property.
To “appropriate property” means to take someone else’s property for your own use without the permission of the other person.
What evidence is needed to prove theft from an employer?
For the prosecution to show that the employee “appropriated property dishonestly” from their employer, they must prove that the accused:
- Did not honestly believe that they had a legal right to deprive their employer of the property (on behalf of themselves or a third party);
- Did not honestly believe that they would have the consent of the employer to take the property (if the employer knew of the appropriation and the circumstances); or
- Did honestly believe that the owner of the property could be discovered through reasonable steps but appropriated the property regardless.
If there’s not enough evidence to prove a charge of theft, the police may choose to lay alternative charges related to stealing, such as handling stolen goods (s88 Crimes Act 1958).
What is the penalty for theft from an employer?
The maximum sentence for theft from an employer is 10 year’s imprisonment.
Fraud
If you are accused of stealing from your employer, you may be charged with fraud (in addition to or instead of theft). The specific charge that is laid will depend on the circumstances of the case. Fraud charges tend to be used in matters where:
- It is difficult for the prosecution to prove that the property ‘belonged’ to the employer;
- It is difficult for the prosecution to prove that the accused had an intention to ‘permanently deprive’ their employer of the property; or
- The accused dishonestly obtained credit or services.
In Victoria, there are two fraud offences that may relate to stealing from your employer:
- Obtaining property by deception (s81 Crimes Act 1958); and
- Obtaining financial advantage by deception (s82 Crimes Act 1958).
Many acts might amount to obtaining property or financial advantage by deception. Some examples include:
- Issuing illegitimate refunds to steal money from your employer.
- Using your employer’s credit card to make personal purchases without their knowledge or consent.
- Borrowing money in the name of your employer without their knowledge or consent.
What evidence is needed to prove employee fraud?
Whilst the Crimes Act does not specifically define “financial advantage”, the Victorian Courts have applied the ordinary meaning of the phrase. As such, financial advantage simply means that the accused or an associated party (e.g. a friend or family member) obtained a “more favourable economic, monetary or commercial position than they otherwise would have” (Fisher v Bennett (1987) 85 FLR 469, 472).
The term ‘deception’, however, is defined in the Act (s81(4)). The accused is taken to have been deceitful if they use words or conduct that:
- Is deliberate or reckless;
- Pertains to matters of fact or law; and
- Is false or deceitful.
For the accused to be found guilty of obtaining their employer’s property by deception, the prosecution must prove beyond a reasonable doubt that the accused:
- Took ownership, control or possession of property belonging to their employer;
- Did so intending to permanently deprive their employer of the property;
- Engaged in deception; and
- Knew they were acting dishonestly.
Similarly, for the accused to be found guilty of obtaining financial advantage from their employer by deception, the prosecution must prove beyond a reasonable doubt that the accused:
- Obtained financial advantage for themselves or another person;
- Engaged in deception; and
- Knew they were acting dishonestly.
What is the penalty for fraudulently obtaining property or financial advantage from an employer?
The maximum sentence for fraudulently obtaining property or financial advantage from an employer is 10 years imprisonment.
Can I Dismiss an Employee for Theft?
If an employer suspects that their employee is stealing, the employer must afford the employee due process and investigate the matter in an unbiased manner. Taking disciplinary action against an employee without gathering proof or allowing the employee to respond may result in the employer facing unfair dismissal claims before the Fair Work Commission.
Evidence that the employer may collect during their investigation could include:
- Documents
- Witness reports
- Transactions
- Stock records
- Surveillance footage.
Only once evidence has been gathered and the accused has been given the opportunity to respond can the employer make a fair assessment based on the balance of probabilities. Should the employer conclude that the employee has been stealing, Fair Work states that disciplinary action can be taken against the employee. Discinaply action can include summary dismissal. However, whatever disciplinary action is taken must be fair and balanced in response to the actions of the employee.
How Can an Employee Beat a Charge of Stealing from their Employer?
If an employee is accused of stealing from their employer, the Court must consider all the circumstances surrounding the alleged offence. Factors that the court may take into consideration could include:
- Ownership and entitlement to the property or finances;
- The employee’s intent and honest belief at the time of the alleged offence;
- The employee’s specific actions in relation to the alleged offence;
- Any other element of the offence.
If the prosecution fails to prove any element of the crime, the employee must be found not guilty of the charge. For this reason, a single fact or piece of evidence might make the difference between a verdict of guilty or not guilty.
If you have been accused of stealing from your employer, it is vital that you obtain legal advice from a criminal lawyer so that all legal options can be explored.
Honest and Reasonable Mistake – Legal Defence
It should also be noted that some legal defences may exist in relation to stealing from your employer. Whether or not the accused can rely on a legal defence will depend on the facts of the matter.
In particular, an employee may be able to rely on the defence of Honest and Reasonable Mistake in certain circumstances (e.g. they honestly and reasonably believed they had a legal right to the property appropriated). To do so, the accused must prove that:
- The mistaken belief was honest (i.e. what the employee truly believed);
- The mistaken belief was reasonable (i.e. does the Court think it was reasonable for the employee to believe that); and
- The mistake was in regard to fact and not law.
It is difficult to raise the legal defence of honest and reasonable mistake. If you believe the defence may be applicable in your matter, you should seek advice from a criminal lawyer who specialises in theft and/or fraud.
Once the defence has been raised, the prosecution carries the burden of proving that the mistake wasn’t honest or reasonable. If the prosecution cannot disprove the defence, the accused must be found not guilty of the charge.
What Should You Do If You’ve Been Accused of Stealing from Your Employer?
If you have been charged or are under investigation for potentially stealing from your employer, please contact Sher Criminal Lawyers immediately. This area of law is highly complex and there are many things you must consider before giving a police interview or attending court.
Our specialist team at Sher Criminal Lawyers is extensively experienced in all kinds of stealing matters. We regularly advise and represent clients facing theft and fraud charges in courts across Melbourne and regional Victoria.
Please get in touch and ask for a free consultation by way of Zoom, Facetime or in person at our Melbourne or Moorabbin offices. Our expert theft and fraud lawyers are available 24/7 and here to help in your time of need.
