A train guard who was accused of stealing a passenger’s mobile phone when it was left on a train and not turned into lost property was not unfairly dismissed, the Fair Work Commission has found.

The employee had worked for Sydney Trains for over 10 years, when in October 2015 it was alleged he put a passenger’s phone in his pocket after it was left on the train when he was doing a sweep at the final station before the train went to the cleaners.

An investigation took place over several months through a third party investigator, and the employee continuously denied the allegation and was suspended. CCTV footage showed the phone case on the floor of the train, the employee bending down and a movement, which the employer argued was the employee putting the phone case in his pocket. The employee argued they were repositioning their bag.

After the person’s movement, the phone was no longer in view. However, the employee stated he must have pushed it further under the seat as he thought it was rubbish as it is not unusual for phone cases to be left behind. The applicant had turned lost property in before and said that if the cover did contain a phone he would have dealt with it in line with the employers requirements. Throughout the investigation, the tribunal concluded errors were made with dates and the make and model of the phone that was believed to be stolen.

The Commissioner ruled that there was a valid reason for dismissal based on all the evidence, the employee was notified of that reason and was given multiple opportunities to respond to the allegations. The Commissioner noted “the procedures were characterised by avoidable error” and that there were “unexplained or unsatisfactorily explained discrepancies” in the investigation process. Moreover, the Commissioner stated the matters could have been handled “more correctly and time efficiently, rather being attended by error and then by changes to allegations in a period spanning over the better part of a year”, particularly given the employer’s resources. However, regardless of the procedure that was followed, there was an “inevitability the applicant would have been dismissed”. The Commissioner considered the employee’s long employment history, however ultimately concluded the dismissal was not harsh, unjust or unreasonable.

Internal investigations are crucial for ensuring reports of bullying, harassment, discrimination and serious misconduct are handled correctly. The Investigations in the Workplace course on 06 March 2017 or 08 May 2017 will cover what constitutes unlawful behaviours, the principles of an effective investigation and outline your role as an investigator in the workplace.