# member of staff has extorted money from another staff member



## samanthajane (8 Dec 2009)

Hey guys, hoping someone can give a bit of advice.

It came to our attention last night that a senior member of out staff has extored €450 from another member of staff. It was €700 bt so far only €450 has been paid. 

We have no solid proof but we did over hear a phone conversation between the 2 people, after the member of staff came to us about this situation. 

The guy was young and worried about losing his job so he agreed to pay for this so called damage that was done to someone property. 

We went to the guards to make a statement and was told there was no point there's nothing they can do!!!! I'm amazed by that but anyway.... 

Obviously we dont want this person working for us anymore, but are worried about possible come back ( i personally dont think the accused would take things any further but my partner is very worried )

we have thought up a number of ways...get him to quit instead of sacking him, but would he sign anything to say he was quitting? He could come back late and say he didn't resign.

Threatner to call the police and hope he doesn't realise that nothing can be done. And we'll never hear from him again. 

Tell him straight out why we are letting him go, and hope he's that ashamed he'll just leave without a fuss. 

I'm so shocked by what has happened, this guy has been working for us for nearly 4 years...as far as we are awre this is the first time anythng like this has happened but there is no way of finding out for sure as the nature of our businee we have a high turn over off staff and they come and go a fair bit. 

I feel terrible for having to let him go 3 weeks before christmas and he has a young son a wife and another baby on the way.....maybe why he resorted to doing this in the first place but still no excuse. 

If he was really stuck for money he could of come to us...on sereval occassion we have helped him out in the past..we have actually bent over backwards to help him a we classed him as a friend not just an employee. 

Were just still so in shock at the moment this has happened. He has also been behaving very badly towards this young lad as well, which is how we found out. We told him who he was working with for next week and he said he couldn't work, after talking to him a bit more we found out that he had i suppose in a way been bullied by the other member of staff, and he said with what happened with the damage he didnt want to say anything incase he lost his job....obviously we were like what damage?? And then it all came out. 

He rang the other member of staff and put him on loud speaker to say that he would have the remaining money for him this friday when he got paid. The other guy replied saying that was fine to give it him and he had spoken to us and his job is safe since he has paid for the damage and to just be careful in future. 

If it hadn't of been for that call that we heard i dont think we would of believed it. A friend who has worked for us for years compared to someone who had worked for us for a month. 

Sorry rambled on a bit....any advice anyone has i'd be very grateful. We've been trying to get hold of our solicitor all day but he's ben unavailable. We manage to make up a story of why he didn't have to work today so we could try and sort things out, not sure we can use that again for tomorrow, but the last thing we want is him coming into work with us knowing what we know now.


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## Arabella (8 Dec 2009)

If you've got proof, stop pussyfooting and fire him immediately. Let the court, if he so wishes to sue, sort things out.


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## samanthajane (8 Dec 2009)

Thats the thing we dont have any solid proof. 

We know 100% he has done this we heard him say it, but if it came down to it is that proof enough? 

Other wise it's just one person saying this has happened and someone else denying it ever took place. 

At the moment he doesn't know that we know, were trying to figure things out before we do anything or say anything.


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## mathepac (8 Dec 2009)

I agree with Arabella. It seems you have solid evidence of bullying (at a minimum) so the employee concerned has breached employment law, inhouse employee guidelines, health & safety requirements, his employment contract, etc.

You need this guy gone. What are your procedures in relation to suspension / termination proceedings?


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## samanthajane (8 Dec 2009)

We have no procedures, we've never had to fire anyone before. 

Staff come and go all the time, it's the nature of the business. If he had only been working for us a few months it wouldn't be an issue. 

The only person we have recived advice from was our accountant, who said it could come back on us, and to be careful. 

He is an indepentant contractor so he has no contract as such. 

The only thing they sign when they start working for us, is a mini contract i suppose that our solicitor drew up for us saying that they are fully aware they are independant contractors, and they are responsible for their own tax and prsi contributions, work is never guaranteed things like that. It's pretty basic....maybe we need to sort that out and have another contract draw up to including things like this.


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## DB74 (8 Dec 2009)

If the guy is an independent contractor then he has no rights as such


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## samanthajane (8 Dec 2009)

This is what i thought but our account said to us that even though he is an independant contractor, because he has been working for us for 4 years and he's always had work from us that because it's so long he now has rights. 

Have no idea what these rights are...but still. 

If he did take us to court and won, our business would go under, were managing to pay the bills and the staff but were making no profit at the moment at all...althought in this climate were delighted to be able to still have a business and people still have their jobs. 

Yeah your right, we should just tell him out straight, i dont think the anger has set in yet, were we so shocked by what has happened. 

Another thing are we legally allowed to not give him his wages this week and give it to the other young lad. If not then were going to give it back to him anyway, but i'd much prefer it doesn't come out of my pocket. 

I'd love not to give him any of what he's owed, but that would get us into trouble. 

I think he must of got himself into trouble else where...for the job he does he is payed very well, we've not cut his wages or his hours once during this recession. He's on €500 + a week for driving around and supervising a team of 4 lads. He earns more a week than what i bloody do!!!


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## Papercut (8 Dec 2009)

Why don’t you speak to him, say that the younger guy has owned up to the damage & ask him when you can expect to receive the compensation/restitution that the younger guy has informed you that he kindly collected on your behalf.

  Alternatively you could just ask him in the event that he witnessed anyone damaging company property, what steps, if any he would be likely to take.

  Or you could ask him for advice as a long standing friend/employee. Tell him that it has come to light that someone has extorted money from another employee, that you were hoping that they would return it to them very soon, but in case they don’t what advice would he would give you on how to proceed without involving the Gardai. Then you could suggest that he think about it & get back to you if he had any ideas.

Any of the above might result in him quitting, or at least returning the money, after which you could find a way of dispensing with his services.


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## jhegarty (8 Dec 2009)

What the story with the "damage" ?

Do you know what happened.


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## Sconhome (8 Dec 2009)

Samanthajane,
Is he independent as a contractor or are you paying him a fixed wage each week for work? 

Either way you could suspend him without pay pending a result of an enquiry into the alleged extortion of an employee. Inform him the gardai are involved and that it is beyond your hands as you are only aware of the issue through the intervention of the gardai.

Based on what you have outlined, if he is independent I would ask for a meeting in the morning, get all of your files, projects he is working on etc back and inform him his contract is finished and you unfortunately have no more work for him. End of story.


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## Complainer (8 Dec 2009)

samanthajane said:


> This is what i thought but our account said to us that even though he is an independant contractor, because he has been working for us for 4 years and he's always had work from us that because it's so long he now has rights.
> 
> Have no idea what these rights are...but still.





samanthajane said:


> The only person we have recived advice from was our accountant, who said it could come back on us, and to be careful.
> 
> He is an indepentant contractor so he has no contract as such.
> 
> The only thing they sign when they start working for us, is a mini contract i suppose that our solicitor drew up for us saying that they are fully aware they are independant contractors, and they are responsible for their own tax and prsi contributions, work is never guaranteed things like that. It's pretty basic....maybe we need to sort that out and have another contract draw up to including things like this.



Perhaps the accountant is worried that your arrangement of having all the staff as 'independent contractors' may not actually hold up. If this is simply a device to avoid your contractual or financial obligations to employees, Revenue might actually deem them to be employees, and you could end up with a large tax and PRSI bill. 

Here's some interesting reading on this issue for you.

[broken link removed]

http://www.askaboutmoney.com/showthread.php?t=36895

[broken link removed]


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## samanthajane (8 Dec 2009)

Complainer said:


> Perhaps the accountant is worried that your arrangement of having all the staff as 'independent contractors' may not actually hold up. If this is simply a device to avoid your contractual or financial obligations to employees, Revenue might actually deem them to be employees, and you could end up with a large tax and PRSI bill.
> 
> Here's some interesting reading on this issue for you.
> 
> ...


 


no this is 100% not a problem. We looked into this so that we were doing everything correctly, they are independant contractors, there is no minium wage, holiday pay or anything, they only get paid for how much work that they do. And there is no guarantee of work, hours or anything. And they dont have to work if they dont want to.


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## davidoco (8 Dec 2009)

samanthajane said:


> The only person we have recived advice from was our accountant, who said it could come back on us, and to be careful.


 


samanthajane said:


> This is what i thought but our account said to us that even though he is an independant contractor, because he has been working for us for 4 years and he's always had work from us that because it's so long he now has rights.
> 
> Have no idea what these rights are...but still.


 
Twice you have mentioned the fact that your accountant gave you advice regarding the position of the blackmailer vis-a-vis contractor or employee. 

As long as you keep your head under the radar Revenue/Social Welfare have no reason to question the arrangement you have with the workers.  

As soon as a disgruntled worker gets the huff and starts talking to solicitors/trying to claim the social then problems start.  You can have all the smoke and mirrors you want but an employee is an employee with associated rights. 

My advice therefore to deal with this situation is to treat him like an employee (although do not tell him that) and give something like an immediate suspension of all his work pending an investigation.  If he looks to come back to work after say 2 to 3 weeks then the fun and games start .


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## DrMoriarty (8 Dec 2009)

This thread has been reopened after consideration by the moderators.

Samanthajane, you might bear in mind that by posting here you are potentially alerting all the people involved to what is happening, if any of them are reading Askaboutmoney. Please make sure you don't say anything that could identify the individual engaging in the alleged extortion.


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## Complainer (8 Dec 2009)

samanthajane said:


> no this is 100% not a problem. We looked into this so that we were doing everything correctly, they are independant contractors, there is no minium wage, holiday pay or anything, they only get paid for how much work that they do. And there is no guarantee of work, hours or anything. And they dont have to work if they dont want to.


When you say 100%, does this mean that Revenue have confirmed to you that they approve of this arrangement? Because they are the only people who can give you 100% on this. The fact that you don't do all the other things that employers do (minimum wage, holiday pay, guaranteed hours) doesn't mean that you will get away with this. The fact that they have signed up as independent contractors doesn't mean that you will get away with this.


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## Bronte (9 Dec 2009)

Complainer said:


> When you say 100%, does this mean that Revenue have confirmed to you that they approve of this arrangement? Because they are the only people who can give you 100% on this. The fact that you don't do all the other things that employers do (minimum wage, holiday pay, guaranteed hours) doesn't mean that you will get away with this. The fact that they have signed up as independent contractors doesn't mean that you will get away with this.


 
Why do you say 'get away with something' as though the OP is doing something wrong.  As far as the OP is concerned they are independant contractors.

But it is true to say that any business that employes independant contracts needs to be very careful about this as it is a tricky area.  Which the OP's accountant has confirmed to her.


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## Vanilla (9 Dec 2009)

I may be missing something here but I don't see where you have said that you have asked for and received the version of events from your long-standing member of staff?

Surely this should be your first step. Call him in, advise him of the complaint against him and ask for his side of the story. Then reserve your reaction until you have considered this.


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## Towger (9 Dec 2009)

Bronte said:


> Why do you say 'get away with something' as though the OP is doing something wrong. As far as the OP is concerned they are independant contractors.
> 
> But it is true to say that any business that employes independant contracts needs to be very careful about this as it is a tricky area. Which the OP's accountant has confirmed to her.


 
Complainer is right, Revenue have their own rules about contractors and chances are the OP does not meet them. We even had an argument with them which we eventually won. As far as they were concerned just because we had desk for someone they were an employee, despite the fact that they had their own company, worked for a couple of other of companies at the same time and was only here for a few half days each week.


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## Bronte (9 Dec 2009)

Well if that is true the OP is in a lot more trouble than with the employee misbehaving.  

Can you actually ask revenue if your 'independant contractor' meets the rules?  Will revenue confirm it to you?


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## Complainer (9 Dec 2009)

Bronte said:


> Why do you say 'get away with something' as though the OP is doing something wrong.


I'll let the OP's words speak for themselves;

"there is no minium wage, holiday pay or anything, they only get paid for how much work that they do. And there is no guarantee of work, hours or anything"


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## Bronte (9 Dec 2009)

samanthajane said:


> , we've not cut his wages or his hours once during this recession. He's on €500 + a week for driving around and supervising a team of 4 lads. !!


 
Complainer my apologies, I've reread the OP's posts, particular this.  Sounds like an employee to me.


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## Mpsox (9 Dec 2009)

I'm not going to comment on the tax issue, others with skills in that area would be far better able to do so.

One thing I am not clear from the OP posts is whether or not there is the person "extorting" the money has potentially a legitimate reason for doing so. You mention "damage" in one line of the post. Why is this guy asking for money in the first place?


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## Complainer (9 Dec 2009)

Bronte said:


> Complainer my apologies, I've reread the OP's posts, particular this.  Sounds like an employee to me.


No problem.


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## Latrade (9 Dec 2009)

On the employment law aspect, there is plenty of case law as to who is considered an "employee" and who is a "contractor". As the query is regarding a particular aspect of employment law, this should be your reference. (main reference the "Denny" Case from the Supreme Court).

The full list of "differences" is quite comprehensive, so you'd have to look through them. Here's the Revenue's code of practice:

http://www.revenue.ie/en/practitioner/codes-practice.html

(Last link "determining employment or self-employment status).

The upshot is that if they are considered a contractor and not employee, then they are not protected by unfair dismissals legislation. In this case you would be required to protect the employee from inappropriate behaviour. As the contractor is the source, you can act as you wish in order to remove the problem.

However, if the individual is an employee, then you couldn't react so severly without due process and investigation. It is unfortunate that you do not have a policy on bullying, however this does not mean that your investigation into the issue can't follow the codes of practice that exist. I would look into the LRC and the HSA's codes and bas your investigation around their advice.


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## mathepac (9 Dec 2009)

samanthajane said:


> We have no procedures, we've never had to fire anyone before...


Sorry but to me that's like saying "No Guard, I never had motor insurance, sure I've never had to claim before".


samanthajane said:


> ... The only person we have recived advice from was our accountant, who said it could come back on us, and to be careful ...


Your accountant is correct - there are several aspects of the situation that could have adverse consequences for you.


samanthajane said:


> ... He is an indepentant contractor so he has no contract as such...


If you read the Revenue guidelines in the link supplied by Latrade above, I think you will find there is a possibility that Revenue will conclude he is an employee. This potentially has adverse consequences for the employer in a bullying / extortion situation, especially as there are no guidelines or procedures in place.


samanthajane said:


> ... The only thing they sign when they start working for us, is a mini contract i suppose that our solicitor drew up for us saying that they are fully aware they are independant contractors, and they are responsible for their own tax and prsi contributions, work is never guaranteed things like that. It's pretty basic....


Basically useless unfortunately as the contract in itself is inadequate in establishing the status of an individual in an organisation from a Revenue perspective.


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## Latrade (9 Dec 2009)

The absence of a policy does not justify the alleged actions. What they do dictate is the handling of the incident. I cannot claim my actions weren't inappropriate or even in breach of my contract purely because the employer didn't have a policy.

With or without a policy acceptable behaviour is a part of my contract of employment.

Where the policy has an impact is in laying out a fair procedure for investigation. The absence of this policy doesn't mean an investigation can't be carried out, it just means you're slightly tied as to how far you can go and that you more than employer who's used their own policy, you will have to ensure that you follow any Code of Practice to the letter.

You can still proceed with an investigation and possible sanctions with out a policy as long as it is a fair and just procedure.


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## DB74 (9 Dec 2009)

So just to clarify

There is no issue in getting rid of a bona-fide contractor as you merely stop giving him work. There is nothing he can do about it.

However your problems will start if he then goes and starts to say that actually he wasn't a contractor but that he was an employee and he was dismissed unfairly etc etc.

If this happens then you are into the nitty-gritty of proving that he was a contractor in the first place and, to be honest, from reading your posts, it would seem like he is really an employee, irrespective of what you or he thinks. In fact your thread title would support this argument.

If you decide to get rid of him, and he decided NOT to pursue the matter then you would probably never have an issue but if he did decide to go down the legal route it could get very very messy and expensive for you.

The other issue is that even if you decide to keep him on you still have the employee vs contractor problem to worry about.


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## Howitzer (9 Dec 2009)

Vanilla said:


> I may be missing something here but I don't see where you have said that you have asked for and received the version of events from your long-standing member of staff?
> 
> Surely this should be your first step. Call him in, advise him of the complaint against him and ask for his side of the story. Then reserve your reaction until you have considered this.


+1 

I would have thought this to be the first port of call. Everything else is just speculation. In fact doing anything else may be construed by pre-supposing guilt.


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## samanthajane (10 Dec 2009)

DrMoriarty said:


> This thread has been reopened after consideration by the moderators.
> 
> Samanthajane, you might bear in mind that by posting here you are potentially alerting all the people involved to what is happening, if any of them are reading Askaboutmoney. Please make sure you don't say anything that could identify the individual engaging in the alleged extortion.


 
will do, no problem



Complainer said:


> When you say 100%, does this mean that Revenue have confirmed to you that they approve of this arrangement? Because they are the only people who can give you 100% on this. The fact that you don't do all the other things that employers do (minimum wage, holiday pay, guaranteed hours) doesn't mean that you will get away with this. The fact that they have signed up as independent contractors doesn't mean that you will get away with this.


 
Yes revenue have confirmed with me that we can class these people as independant contractors. We do have 2 members of staff that connot be classed as this so they are on the books so to speak and recieve pay slips from us with all the relevant information on, take away their tax, prsi and pay all our contribution for them. Orginally we thought we could class them as independant contractors ( we had a different accountant then ) but when we swapped over t th new accountant he was concerned that they wouldn't meet the requirements, so after alot of digging and contacting the revenue i'm 100% sure that were doing nothing wrong and are fully legal. 




Vanilla said:


> I may be missing something here but I don't see where you have said that you have asked for and received the version of events from your long-standing member of staff?
> 
> Surely this should be your first step. Call him in, advise him of the complaint against him and ask for his side of the story. Then reserve your reaction until you have considered this.


 
We did hear a phone conversation, with him admitting that he had taken money from him for this damage he said the other guy did...again there never was any damage in the first place, and he was expecting the remaining this week. We were holding off talking to him to figure things out a bit more. Hearing his side of the story wasn't going to take away the fact we knew he had done it in the first place.



Towger said:


> Complainer is right, Revenue have their own rules about contractors and chances are the OP does not meet them. We even had an argument with them which we eventually won. As far as they were concerned just because we had desk for someone they were an employee, despite the fact that they had their own company, worked for a couple of other of companies at the same time and was only here for a few half days each week.


 
No 100% they meet the requirments for being classed as independant contractors.

Anyway update..after advice fom our solicitor and also you people here reminding me that as an independant contractor we dont have to offer him anymore work...just needed that confirmed and we did. So my partner rang him and told him that there wouldn't be anymore work for him. We were planning to just give the money back to the other guy ourselves and just let it go. 

But then an hour later he turned up at the door wanting to know why. So it all came out that we knew what he had done. There was a lot of tears and apoligising from his part, he admitted to doing it and said he was planning on giving the money back to him at a later date when he had it. He just needed more money coming up to christmas and moving into the new house. Pleaded to keep his job, but there's just no way we can have him working for us anymore, he's agreed to give back the money to the other guy out of his wages this week and we'll transfer what ever is remaining into his account as normal. 

Not sure what he's told his wife but it's not the truth. She rang a few times wanting to know how we as friends could let him go just before christmas!! I dont feel it's our place to tell her what has happened, and told her we were really sorry we had no choice and she would have to discussed it with her husband. She not giving up though she's left a few more messages today.


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## samanthajane (10 Dec 2009)

not sure how but i missed the whole 2nd page of this thread! 

I was told not to give away too much details, so i cant say the nature of our business, if i could then it would be alot easier to explain. 

Him being on 500+ a week is an average that i gave, it varies from week to week, he gets paid a slightly higher rate than the other guys because he is in charge or over seeing their work as well. He still does the same job as what the others do, but because he has to organise them as well he cant be expected to do as much as what they do, so to make up for that he's on a higher rate. 
But he still does only get paid for the work that he does. 

There arnt many but a few other businesses that do the same thing that we do and i know that all there workers are classed as independant contractors as well. 

Even when they ask us to do work for them, we as a business are still classed as a contractor. We give them the invoice for the work done and they pay us, same as what we do for our staff.


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