Employee’s confession on extent of stolen goods invalid

Year of publication

2012


Edition number

207


Reference

Amsterdam District Court, February 1st 2012, www.rechtspraak.nl, LJN: BV3669


Decision

An employer who had caught a shop assistant in theft and who had made the shop assistant sign a confession for the amount of the stolen goods could not rely on this confession when the assistant later stated that the amount entered in the confession was incorrect.

The shop assistant worked in a department store. When, in September 2010, she was suspected of theft the Internal Criminal Investigations Department started an investigation, including that some cameras were placed in two warehouses. On October 21st 2010 the manager and a member of the Internal investigations Department confronted the shop assistant with the existing suspicion against her and the found evidence. The shop assistant then confessed the theft. Subsequently, the member of the Internal Criminal Investigations Department drew up a statement in which it was calculated that for an amount of € 115,000 in property had been stolen. For this amount the shop assistant signed a confession which, according to the requirements the law sets for a unilateral confession, contained a hand-written value indication ("for (the price of)" followed by the amount in figures and letters). The conversation took fifteen minutes. The shop assistant then was suspended and later summarily dismissed.

The amount of € 115,000 was calculated as the saleswoman told that for a period of at least one year she twice a week gave at least three or four bags of goods at a time to acquaintances, with an average value of € 400 (= € 2,800 per week) and that on top of this she also took goods herself. Determining the amount of € 115,000 was based on 40 weeks x € 2.800 plus € 3,000 for self-taken goods.

When the department store insisted on payment of the amount of € 115,000, the lawyer of the shop assistant, however, destroys the confession by letter of January 28th 2011, arguing that no consensus had been reached, or at least that circumstances had been abused while signing the confession. After confessing the theft, the shop assistant was so ashamed that she wanted to leave the meeting as soon as possible, reason why she would have answered all questions affirmatively. Words would have been put into her mouth. Initially she would have said that the theft had been going on for six months and the member of the Investigations department would have changed it into a year. The actual value of the stolen goods would be much lower: around € 4,000 - € 5,000.

It comes to a procedure at court. The Court rejects the defense that no consensus would have been reached. Once the confession was signed and contained a value indication, the department store should trust that the shop assistant agreed with the contents of the confession. The court, however, does consider that there has been abuse of circumstances during signing of the confession. The department store knew or should have understood that during the conversation the shop assistant had been in a very unequal position and they should not have stimulated her to sign the confession under these circumstances. The court points to the fact that the shop assistant went into the interview unprepared, that an employer usually has a position of preponderance and that, in this case, two men attended the meeting who were higher in the hierarchy than the shop assistant was and that the assistant found herself in an awkward situation because she had just been confronted with the discovery of the theft committed by her. In addition, during the session of the court it had become clear that it was impossible for the department store to calculate the actual amount of damages because many goods were stolen from third parties who ran their own shop within the department store. The court fully rejected the claim of the department store.


Comments

A procedure like the department store applied in this case, is not uncommon in chain stores. For signing a confession in a case like this is, however, the same rules apply as for resigning or accepting dismissal: the employer has to make sure that the employee oversees all consequences of what he/she declares and that he/she actually accepts them. This not only means that the consequences must be pointed out, but also that the employee must be given the time to think about it and to take advice.

It is remarkable that in this case even the amount for which the worker acknowledged to have stolen was not granted by the District Court. Maybe this had to do with the wording of the department store’s claim. If it was only based on the concluded agreement, the court could not do but fully rejecting the claim once the agreement rightly proved to be set aside.





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