Fair Work Commission finds unfairly dismissed employee can have their cake and eat it too

10 September 2021

The Fair Work Commission has found an employee accused of stealing a cake was unfairly dismissed.


Overview of the facts

The pastry cook assistant had received three written warnings between April 2020 and September 2020 in relation to an array of performance and conduct issues.

In the first week of October 2020 while reviewing CCTV footage, her manager became aware the employee had taken a cake home without paying for it. The employee argued it was a piece of excess cake which would have been thrown out and that it was common practice to do so. The manager /rejected the explanation arguing there was rarely excess stock as it can be used or repurposed.

The manager confirmed where stock is faulty, provided approval is granted, an employee can take it free of charge. Prior to dismissing the employee the manager made enquiries as to whether approval had been obtained, but ultimately formed the view the  staff member had stolen the cake.

On 8 October 2020 at 4.00pm the employee received an email requesting their attendance at a disciplinary meeting to be held the following morning at 9.00am. The email stated that the employee could bring a support person. As English is the employee’s second language, she sought assistance from a friend who emailed the employee’s union representative asking them to attend.

Unfortunately, it was too short notice for the union representative The manager was advised and asked to reschedule, refused as he was “all geared up to proceed.”

On the morning of 9 October 2020, the employee initially refused to attend the meeting without a support person. However, the manager approached the staff member again and asked to see them in the office where a lawyer representing the business was waiting.

The employee reiterated they could not understand the meeting without a support person, but the manager persuaded her to attend saying “this man is legal.” The lawyer advised the employee the purpose of the meeting was to discuss the issue of taking goods without payment, and if there was no valid explanation she would be dismissed. The pastry cook assistant confirmed they did not pay for the cake and did not seek permission from the manager, but thought it was sufficient to ask if that part of the cake was needed before taking it. The employee also maintained it was common practice for colleagues to take produce without asking. At the end of the meeting the lawyer handed the employee an envelope containing a termination letter.

The decision

Having considered the evidence, the Commission accepted the employee’s account that it was normal for staff to take offcuts home without obtaining permission. In reaching this conclusion, the Commissioner viewed and considered the CCTV footage in which the employee made no attempt to hide the cake. In view of this, the Commission concluded there was no valid reason for the dismissal. 

In addition, the Commissioner determined the dismissal process was flawed. In particular, the refusal by the manager to reschedule the meeting was unreasonable.

Noting the pastry cook assistant’s employment history including the three warnings, the Commission ruled the employment would have continued for a maximum of 20 weeks. The employee was awarded $16,480, the remuneration the employee would have received.

Learnings for business

This case highlights the importance of carefully investigating allegations of misconduct and considering all available information, both during the investigation and the disciplinary process. Similarly, affording procedural fairness is vital. Simply offering a support person is insufficient. In this case the employee wanted a support person present, but the business unreasonably refused to postpone the meeting which was called at short notice. Employers must ensure they don’t just go through the motions.

How the Victorian Chamber can help

Before dismissing an employee, reach out to the experts and receive advice early to understand the risks and have confidence in your process. If you do receive an unfair dismissal claim it can be both costly and time consuming. Before you take any action, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222 to discuss your obligations. Our experienced Workplace Relations Consultants can also assist you with strategic guidance in managing employees and navigating unfair dismissal claims.

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