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Introduction

Read the full decision here.

The applicant saw the work vending machine open and helped himself to a can of coke. Well it had robbed him before was his logic and so was the logic of the FWC leading to an illogical award of $28,000 plus a possible investigation by the Fair Work Ombudsman into why the applicant was not paid his pro-rate long service leave entitlements.

Background

The applicant was employed as a meat worker for a Queensland abattoir for some 9 ½ years of “unblemished” service.

One day, seeing the Coke machine was open, the applicant helped himself to one can of Coca Cola without payment. Unfortunately, the incident was captured on CCTV, and following a due process investigation, the applicant was dismissed without notice for serious misconduct (theft).

Reasoning

The applicant claimed and was backed by witness testimony, that the same machine had “stolen” from him and his workmates on a number of occasions, and on this logic he was only regaining a small proportion that he felt that he was owed.

The applicant’s submission

The AMIEU (meat employees’ union) submitted that the decision to dismiss the applicant was harsh in all of the circumstances, citing the applicant’s:

  • Length of service with CHS of approximately nine and a half years;
  • Previous impeccable disciplinary record;
  • Taking an item of relatively trivial value;
  • Taking of the property is outside of his normal character;
  • Readily admitting what he had done, and did not attempt to mislead the respondent about his culpability;
  • The seriousness of the conduct was mitigated to some extent by the fact that the applicant had lost a significant amount of money to the vending machine, in excess of the value of the property taken, giving rise to a view that he was not really depriving the vending machine owner of money to which they were entitled;
  • The termination meant that he was not paid any amount of pro-rata long service leave, despite the length of his service with the respondent.

Crime and punishment

The Commissioner found that whilst the respondent company had a valid reason for dismissing the applicant, such action was not fair nor reasonable under the circumstances.

And on this point, the Commissioner commented:

“It was submitted [there being] a notion of there being a mechanism available to obtain a refund, however, the evidence showed quite a few people had problems with the vending machine and it was a common experience that people lose money in vending machines and very few go through the process of trying to obtain a refund and over a period of time the amount of money builds up and is part of the context as to why [the applicant] did something that he would not ordinarily do”.

The AMIEU further submitted that the Commission adopted this approach so that employers will not be deterred from extending leniency in appropriate cases, and referred to Sexton v Pacific National (ACT) Pty Ltd 7 at paras [36] – [38]:

“The Commissioner dealt exclusively with what he saw as being inconsistent punishment. We have serious doubts whether alleged inconsistency of punishment should form part of the consideration of the reasons for intervention under s.246 in the manner in which the Commissioner say was appropriate. The response to misconduct is a matter of discretion. The time, place and circumstance of one breach, the circumstances of the offender and the implications for adequate administration of an enterprise, will seldom coincide. It is desirable that employers where they can, should exercise leniency. Employers should not be discouraged from such a course by labouring under the disability that once a benign view is taken in one case that no other view is available.” [My emphasis].

In other words, an employer should not use a blanket approach to discipline outcomes; approaching each transgression on the merits of each individual case.

The Commissioner, on the other hand dismissed the respondent’s argument that cited David Thomas and Frederick (Junior) Faamausili Ailua v Virgin Australia Airlines Pty Ltd t/a Virgin Australia where ground crew for Virgin stole two packets of cigarettes from a cargo shipment which was damaged and partially open after a flight. Both staff in that matter denied stealing the cigarettes and continued to deny doing so. They were subsequently found by the Commission to have stolen the cigarettes and the Commission pointed to their deception and dishonesty specifically in the following findings:

“[116] In my view, Virgin’s evidentiary case provided a sound, logical and rational foundation for the Commission, to be satisfied that the applicant’s denials of involvement in the theft, cannot be accepted. Obviously, neither applicant pleaded the severity (harshness) of their dismissal in the context of a theft amounting to just two packets of cigarettes, valued at probably less than ~$50.00 total. To have done so, would be to contradict their consistent line that they had not done anything wrong and had neither stole, nor received stolen freight. Whether it was a relatively small value theft or something more substantial, is really not the point. Theft is theft – no matter the value. However, had the applicants not been untruthful during their investigation and in their evidence before the Commission and in Mr Thomas’ case, his self-serving concoction of invention, I might have put their conduct, particularly in Mr Faamausili Ailua’s case, down to a stupid and very bad error of judgment. By not admitting their conduct, I am reminded that it is often not the conduct itself that determines one’s fate, but the subsequent attempt at cover-up. Nevertheless, regrettably, the applicants have ‘made their bed and must now lie in it’. I am satisfied the allegations against the applicants have been proven. I turn now to the matters the Commission is required to take into account under s 387 of the Act.” [My emphasis].

The Commissioner concluding:

“There was no deception or dishonesty on the part of [the applicant] once confronted with his actions in taking the can of Coke. T[The applicant] owned up to taking a can of Coke with a likely value of $2 or $3 in circumstances where he had lost many times that amount to the same vending machines over a period of time without recompense”.

Not the FWC’s role to determine the criminality of an act

Remembering that the FWC is not a court, it cannot consider whether someone had broken a law and determine penalty based on this. The union submitting that:

“…that there is no need for the Commission to consider whether [the applicant] had committed an offence and it was not the Commissions role to do so”.

The outcome

This is where logic went out of the window (in my humble). The Commission finding whilst the respondent has a “valid”, the dismissal was nonetheless “unfair” and “unreasonable”.

As the applicant had secured employment elsewhere, the Commissioner order compensation, where reinstatement to the applicant’s former position was originally sought by the applicant and is the first port of call under the Fair Work Act. Toi my mind, the logical outcome (given the arguments put) would be that the applicant quit his job and return to the respondent’s employment without loss of pay or entitlements.

But instead, the Commissioner ordered the respondent to pay to the applicant the sum of “$28,280 gross taxed according to law within 14 days”.

Adding:

“Whilst not strictly a matter for the Commission in the course of the matter it was common ground that in the event of a determination that his termination was unfair, [the applicant] would be entitled to payment of pro-rata long service in accordance with the long service leave provisions of the Industrial Relations Act 2019 (Qld)”.