[My Work] What should you do when a former employee does not return company-issued smartphones or PCs? [HR Work / Resignation Entry]

I read a news story about a former employee who, despite a rule requiring the return of loaned items by their resignation date, is not answering phone calls and is keeping the smartphone and computer they used for work.

That was the news I read.

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This is a "loaned item return issue (so-called 'borrow-and-keep' issue)" that also periodically becomes a problem for my clients.

While this news story focuses on electronic devices like smartphones and PCs, it is an everyday occurrence for items like uniforms and stationery not to be returned.

In such a situation, the company (the president) would likely want to take some kind of countermeasure.

(1) Theft

Theft requires the act of moving property (loaned items) into one's own (the employee's) possession against the will of the possessor (the company).

Since the company consented to the loaned items being given to the employee, theft does not apply.

(2) Embezzlement

Embezzlement refers to a person (the employee) who is entrusted with another's property (loaned items) acting against the purpose of that trust (the company's intent) and demonstrating an intent to dispose of the property in a way that only an owner could.

At the stage where no intent to dispose of the loaned items, such as through resale, has been externally manifested, it is difficult to establish embezzlement.

(3) Fraud

It is difficult to prove that the employee intended to make the loaned items their own from the beginning, so it is difficult to charge them with fraud.

As described in (1) through (3) above, while it is considered difficult to pursue criminal penalties at the stage where they are simply 'borrowing and keeping' the items, it is possible to pursue civil legal liability.

Since the employee loses the authority to possess the loaned items upon resignation, the company can demand their return based on ownership rights.

Furthermore, if the loaned items have been damaged due to the employee's responsibility, you can also claim damages.

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If you pursue this strictly, it will be treated as a crime as mentioned above, but even if you file a lawsuit and win, the benefits to the company are small when considering the effort, time, and money involved.

Therefore, preventive measures are necessary to prevent the so-called "borrowing and keeping" of loaned items.

However, there is one point you must be careful about.

Deciding in advance on a compensation amount, such as "if you do not return it by the deadline, you will pay X yen," is not permitted because it violates the "prohibition of predetermined indemnity" stipulated in Article 16 of the Labor Standards Act.

This is something that must be kept in mind not only for cases of borrowing and keeping, but also for daily human resources and labor tasks.

Furthermore, many small and medium-sized enterprises have regulations such as,

If you are late, your salary will be reduced by X yen per instance.

This is also illegal as mentioned above, so companies doing this must correct it immediately.

However, it is easy to get confused here, but regarding salary payment,there is the principle of no work, no payso deducting the hourly or daily wage for the time missed due to lateness or absence is permitted.

This is obvious, isn't it?

There is no problem with reducing salary for time not worked.

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However,

From the employee's perspective, there is almost no benefit (only disadvantages) to not returning loaned items.

It can be said that.

The risk of being sued for damages by the company due to information leakage or similar issues is dozens of times greater than any financial gain one might receive from continuing to use (or selling off) the loaned items.

Regarding the return of loaned items, even if there is a dispute, there is no benefit to either the company or the employee as mentioned above, so I would like them to follow social rules and return them.

Also, it is important to create a corporate culture where such things are done as a matter of course on a daily basis.

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