Employer ordered to pay $28,000 after dismissing a worker for stealing without proper investigation

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Source: Unsplash/Troy Mortier.

An employee has been awarded compensation after the Fair Work Commission (FWC) found the employer failed to properly investigate allegations of serious misconduct, which resulted in the employee being unfairly dismissed.

The employee was employed as a full-time fields services technician by WesTrac Pty Ltd. The employer provided services to coal mines and the employee was based at the Bengalla mine.

At the Bengalla mine, when a worker was finished with an item, it was to be placed on a “store bench” or returned to the store area. The item would then be assessed to determine if it was still fit to be used and, if so, returned to the storeroom.

On April 11, 2020, four struts were left on the store bench. The employee picked up the bundle of struts and took them to his work ute.

The employee claimed that he had taken the struts to his ute to compare them with his own struts. He then removed two struts from the bundle and returned them to the store bench, leaving the other two in his work ute.

At the store bench, the employee was confronted by a subcontractor about his actions. The employee then returned to his work ute and subsequently returned the two struts back to the bundle.

The employer put allegations to the employee that he had removed the struts with the wilful and deliberate intention of stealing them.

The employer relied on two written statements from subcontractors who witnessed the employee returning only two struts to the store bench.

One of these statements provided that, when confronted and asked if he was stealing the struts, the employee did not provide an answer.

The employee denied that he was stealing the struts and told the employer that he took them to his work ute for the purpose of undertaking a comparison with his own struts.

The employer did not accept the employee’s explanations as being plausible and found it more likely that the employee took the opportunity to take the struts, intending to steal them and only returned them when confronted by a co-worker.

The employee was summarily dismissed from his employment on the basis that the employer believed the employee had intended to steal struts from the workplace.

The employee filed an application in the FWC alleging that his dismissal was harsh, unjust or unreasonable.

Decision

The FWC held that the employer did not have a valid reason for the employee’s dismissal and was not satisfied on the balance of probabilities that the employee intended to steal the struts.

The FWC found that the employee provided evidence of the purchase of his own struts, had directly answered questions in a logical sense and was a credible witness.

The FWC was also critical of the employer’s conduct of the investigation.

Significantly it was noted that the two witnesses were not interviewed at any point throughout the investigation and the employer only relied on their written statements.

The FWC considered that a thorough and comprehensive investigation required the employer to take reasonable steps to put inconsistencies to the subcontractors, but the employer did not do this.

Accordingly, the FWC held that the employer made assumptions about matters and relied on these assumptions to form its position, but the employer did not actually put these matters to the employee for his response.

The FWC also found that the summary dismissal of the employee was harsh as the employee did not engage in any misconduct and the dismissal also had significant consequences on the employee’s personal and financial circumstances.

Due to the absence of a valid reason for dismissal, the deficiencies in the investigation and its findings that the summary dismissal was harsh, the FWC found in favour of the employee that his dismissal was harsh, unjust and unreasonable.

In relation to remedy, the FWC considered that reinstatement was impracticable due to the loss of trust in the employment relationship and because the employee was not welcome at other customer sites.

The FWC ordered the employer to pay the employee compensation totalling $28,313.41, being four months of the employee’s pay.

What can your business learn from this decision?

Employers must ensure that investigations are conducted in a thorough and procedurally fair manner.

This includes testing inconsistent versions of events with witnesses, providing the employee in question with the allegations against them, and providing them with an opportunity to respond.

This case is a good example of the FWC’s tendency to find dismissals unfair when they are based on flawed investigations.

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