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Q: “"Theft" is listed in our rules as an example of gross misconduct. We found a man taking some hardwood from our store and told him that we intended to take disciplinary action against him for theft. He took legal advice and responded that, as he was taking the wood to his home workshop in order to make an extension to his office desk and thereby increase his productivity, it was not theft. We gave him the benefit of the doubt – but should we have done?”
A: Frankly I don't know. The legal definition of theft requires a number of points of proof including an intention to use the proceeds for personal gain. You might well have got away with saying that, on the balance of probability, you believed that he was taking the wood for personal gain because the desk extension really was unnecessary.
Also I suspect that a court might have interpreted the term "theft" in a broader way than normal to reflect what employers and employees would believe it to mean. However, to be on the safe side I would change the term "theft" in your list of gross misconduct examples to read "removing company property from the site without permission." That is much easier to handle and prove.
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