Ravindra Chandra v UGL Rail Fleet Services Ltd. (U2015/6105)  FWC 7381. LAWLER, VP. 26 OCTOBER 2015
When moving from one site to another the Employer as part of the transfer process allocated a “clean-up team”. The applicant was part of this team.
The employer set in place a voucher system process whereby employees were able to request to take materials excess to the employer’s requirement; insofar they did so with permission and in their own time.
In this matter the applicant was dismissed for “serious misconduct” for removing copper pipe despite being refused permission to do so, and in company time.
The pipes went missing, with the site manager suspecting that Mr Chandra stole the copper pipe.
As stated by the VP:
“…suspicion is not proof. When an employer relies upon misconduct as a ground for dismissal it is necessary for the employer to establish that the misconduct occurred on the balance of probabilities (with the Briginshaw * satisfaction when an allegation of fraud or dishonesty is involved).”
“When a criminal offence is relied on as a ground of dismissal of an employee a more than cursory examination of the facts is required.
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. …… In such matters `reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 and 362.”
As the VP observed:
“The Respondent, in its reasons for dismissal in the dismissal letter, did not allege theft, fraud or dishonesty but it is tolerably clear that the suspicion that Mr Chandra had been preparing to steal the copper pipes lay behind the decision to dismiss him for the particulars of misconduct set out in the dismissal letter.”
The VP also considered
“Mr Chandra’s age (49 years) and the inevitable difficulty that someone of his age and experience will have in finding ongoing work and the very adverse effect on his reputation that the dismissal has had within his own community, where he has been unjustly branded as a thief as a result of the dismissal. The evidence does not establish that Mr Chandra was a thief or that he engaged in any dishonesty.”
This absence of proof led to the VP ordering Mr Chandra be reinstated to his former position without loss of pay or entitlements.
This case turned out to be a bit of a disaster, because the worst thing that can happen when you sack an employee is to have them reinstated.
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