In an interesting unfair dismissal case that was heard recently, an employer was ordered to pay compensation of $28,313.41 to an employee who was found to have been unfairly dismissed.

As an overview, the employee worked at a mine site and was dismissed for intending to steal from the workplace. The employee had taken items from the workplace and put them in his car, to compare them with similar items he had previously bought online. These items were brought back to the usual workspace around 15 minutes later.

Without getting into too much overwhelming detail, the following summary can help employers understand how challenging these issues can be:

  • The original incident occurred in April 2020, with the decision not being made until 27 October 2020. That’s 6 months of potential stress and negotiations.
  • The employer was a large employer, with reasonable human resources capabilities.
  • There was no specific policy and procedure in place for the specific actions the employee took, however it was generally accepted that any employee who stole, or had an intention to steal, items from the return to store bench would be in breach of a range of policies and procedures.
  • The employer did investigate the incident; however;
  • The employer relied on the written opinions of witnesses and what the witnesses believed the employee ‘should have’ done in that scenario, rather than on the statement made by the employee.
  • The employee stated in the investigation that one of the witnesses ‘had it in for him’.
  • The employee had been employed for over 10 years and had not been accused of stealing during this time, until the incident in April.
  • Despite there being other performance issues, the Fair Work Commission found that the dismissal was harsh, unjust and unreasonable, as it was accepted after reviewing the evidence, that the employee DID NOT intend to steal the items.
  • The amount determined to be paid as compensation by the Fair Work Commission took into account the likelihood of the employee only remaining with this employer for another 4 months; and the period of unemployment before finding a new position at a much lower pay rate (after applying for over 60 jobs).

Despite the process and investigation by the employer, the dismissal was found to be harsh, unjust and unreasonable. In this case, it seems possible the employer relied too much on the witness statements. Given the previous issues on other sites, unrelated to potential stealing, perhaps the investigators had clouded judgement against the employee.

For employers, the lesson from this case is that it’s important to be open-minded and clear about the issue at hand when it comes to investigating potential dismissal issues.

Need help with your employment matters? Talk to the Workplace Central team ASAP!


*This is general information only and doesn’t take your specific circumstances into account.