Mr Perrin LeFebour v Prow Pty Ltd T/A Club Bay View (U2014/199) [2015] FWC 5072. CLOGHAN, C. 28 JULY 2015

The facts of this matter can be summarised thus:

  • The applicant was employed by the respondent for 16 months.
  • The business was sold, and the applicant was laid off for a couple of weeks to see if the business needed him.
  • It came to the new owner’s attention that there was a $30,000 anomaly in the ATM accounts.
  • It is clear that the applicant was the chief suspect, and a letter terminating Mr LeFebour’s (the applicant) employment:

“I am writing to inform you that effective immediately, your employment with Prow Pty Ltd at Club Bayview and The Avenue has been terminated as a result of my enquiries into the matters discussed with yourself and Daniel regarding issues of impropriety and missing funds.

The matter will be investigated further and may be referred to other authorities.”

The Commission comments as follows:

“Theft from an employer is generally considered serious misconduct, warranting immediate dismissal.”

“Mr Heathcote, for the Applicant, submitted that:

“…where for no reason, for no fault of the applicant’s part, the respondent has clumsily, carelessly and incompetently [my emphasis] executed a dismissal without an apparent reason…”

“On the facts and evidence, it is difficult to disagree with Mr Heathcote.”

“There is no dispute that an employer may summarily dismiss an employee for serious misconduct. However, in this case, the Applicant became aware of the alleged serious misconduct at the earliest on 6 January 2014, which is approximately a month after his employment was terminated [my emphasis].”

“Where serious misconduct is alleged, the test for a valid reason remains the same – that is, whether the reason was “sound, defensible or well founded” and not “capricious, spiteful or prejudiced”.

“I have no sound evidence from the Employer regarding the alleged impropriety or theft. What documentation I have is not signed or was able to be tested.”

“The Applicant submitted that should his dismissal be found to be unfair, he is not seeking reinstatement and seeks $28,680.51 as compensation.

In finding in favour of the applicant:

“The order for compensation shall be an amount of $18,994.50. The gross amount is to attract the relevant superannuation and taxation required by law. [Both my emphasis].

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