In recent years, on-site theft has become an issue for many operators of coal mines, resulting in the implementation of zero-tolerance policies for stealing.

On 11 April 2020, an employee picked up a bundle of four struts (a structural component designed to resist compression) and took them to his ute. The employee left two struts in his ute and returned two.

When the employee returned, he was confronted by a subcontractor who asserted the employee was stealing.

The employee said at the time he explained he put the struts in his car to “compare them with the struts in my ute so I can research a different brand of strut”. The subcontractor states the employee did not “have any answers”. After this conversation, the employee had some spare time to go back to his ute and compare the struts which took a couple of minutes, he then walked back and returned the remaining two struts.

On 20 April 2020, the employee, with his union representative, had a meeting with the Branch Manager and Field Service Supervisor where the allegations were discussed. The employee explained the comparison he undertook and that he had “no intention to steal the struts and did not steal them”. The employee was then required to provide a written response to the allegations.

The employee provided a written response and attached an invoice for struts he had purchased a year earlier. The subcontractor also provided a written statement. However, the accused employee was not given a chance to respond to those accusations or given an opportunity to test the ‘truth and reliability of the information’.

The employer concluded the employee’s conduct was “willful and deliberate” and a breach of the code of conduct and personal behaviour procedure. This along with the employee having a poor employment history and having engaged in previous breaches of the company policies, including being removed from numerous customer sites, ultimately lead to the employee’s dismissal.

The employee was notified of the reason for dismissal in a show cause letter dated 27 April and a letter of termination dated 29 May 2020.

The decision

When considering if the dismissal was justified, the Fair Work Commission (the “Commission”) considered the investigation process and the employee’s employment history. The Commission noted the employer failed to address the inconsistency or put the subcontractor’s evidence to the employee.

Whilst the Commission was able to see the written statement the subcontractor prepared, it was not prepared for the arbitration and it was unclear what instructions were provided to the subcontractor which lead to the statement. The subcontractor did not attend as a witness - meaning the Commission only had the employee’s evidence to consider when assessing whether or not it was satisfied there was an intention to steal.

The Commission considered the employee was a credible witness who did not intend to steal. In light of this, the Commission confirmed there was no valid reason for dismissal.

In relation to section 387(h) of the Fair Work Act 2009 (Cth) the Commission also considered internal policies and concluded the employer failed to meet the standard of their own Counselling and Disciplinary Procedure which ensures “a thorough and comprehensive investigation is carried out as soon as is practicably possible”. The Commission held the failure to address inconsistencies and not afford the employee the opportunity to respond to allegations of criminal behaviour was a flaw in the investigation process.

Finally, the Commission had regard for the adverse impact the dismissal had on the employee noting in order to meet his mortgage payments he had sold various personal possessions.

The Commission concluded the dismissal was harsh.

The Commission considered compensation was the appropriate outcome given many customers had already refused to allow the employee onto their sites. When assessing the compensation to be ordered, the Commission had regard to the employee’s attempt to secure alternative employment including a role which was secured, albeit at a lower wage. The employee was awarded compensation in the sum of $28,313.41.

Learnings for business

This case highlights the importance of carrying out a thorough investigation. Failure to properly investigate serious workplace issues can result in widespread consequences, including court action.

It also highlights the importance of adhering to company procedures, which ensure compliance and give guidance in decision making. In this case, the employer failed to meet the standards of their counselling and disciplinary procedure which weighed against the business.

How we can help

VCCI’s experienced Workplace Relations Consultants are skilled investigators and are able to scrutinize instances of misconduct as well as provide strategic advice in relation to how to navigate disciplinary processes. When claims are made, our Consulting team are on hand to provide assistance and advocacy in the Fair Work Commission.

The Workplace Relations Advice Line offers general advice on a range of workplace issues, including:

• Award interpretation, classification and minimum entitlements
• Disciplinary processes, performance management and termination
• Personal illness and injury
• Parental leave and flexible working arrangements
• Redundancy
• Occupational Health and Safety and WorkCover

For assistance on any aspect of your employment obligations, please call the VCCI Workplace Relations Advice Line on 8662 5222.

[2020] FWC 5729