Atty. Rami Hourani
A common area for consultation that occurs in my practice are instances where employees are caught with their hand in the cookie jar. It is inevitable, every business is going to have areas in their process where someone has to hold cash. In those portions, the potential for fraud, theft, estafa, or swindling is high. Once an instance of misappropriation has happened in the company though, there are a few mistakes that can cause potential litigation to become more difficult. This article will supply a few controlling principles which you can use to make potential litigation go smoother.
People are keen to point out how you have the right to remain silent in legal proceedings. This doesn’t apply as against private persons though. There are multiple touch points through the pre-termination process where you can solicit valuable evidence against the person you suspect of having committed fraud against the company. It is very important for you to keep any response that they might have made to a notice to explain. Further, if an administrative hearing occurs, don’t hesitate to make a recording of the explanations offered whether these be signed minutes of meetings and/or actual video recordings of the statements made. Two things merit attention though, first, you should be confident that you are following the proper HR processes otherwise creating recordings could create liability for you and, second, that it should be clear to everyone concerned that a recording of the interaction is occurring.
Abbreviate Your Interactions
The profile of people who commit estafa or qualified theft is broad. These can be crimes of opportunity or intricate and deliberate schemes perpetrated by many people over a period of time. In either case, both kinds of people get by on the belief that every small lapse can be explained away and that if things feel “normal” its a good sign that they’re getting away with their scheme. This is why you should do your best to make your interactions after an instance of fraud has occurred as brief as possible. Restrict yourself to just the facts: Were you there on that day? Why does your signature appear here? Why didn’t you submit deposit slips?
Once they realize that their usual light hearted comments and easy explanations aren’t sufficient to extricate them from this problem, they will start thinking in the terms you want them to: How do I stop this inquiry? What do they want from me? Maybe if I just give them back their money this can all go away. (Bingo.)
Don’t Sign An Agreement
An important distinction between the crime of Qualified Theft and Estafa is that Estafa can be subject of compromise. This means that if you sign an agreement over the amount of money to be paid back, you give up the right to pursue a criminal charge. (For example, signing a minutes of a meeting where it was agreed that they would pay you back in a given period of time.) A criminal charge is the most effective legal mechanism, for getting someone to give you back your money. You may ask the question, how can you tell when something is Estafa or Qualified Theft? My answer is, you need to talk to a lawyer to be sure so in the mean time don’t sign anything.
While it is always preferable that people amicably settle their differences, you want to always leave yourself the option for effective relief before the courts.
Atty. Hourani practices law in Cebu City, Philippines. If you would like to set an appointment with him, you may reach him here.