Stealing is largely considered serious misconduct and therefore grounds for summary (instant) dismissal.

However, the case law has been quite clear in the past, that evidence or at least some factual basis is required to terminate the employment of an employee on the basis of theft. What may be obvious to an employer may not be so clear cut for the Fair Work Commission (Commission).

In the decision of Peter Mulhall v Direct Freight Pty Ltd t/a Direct Freight Express [2016] FWC 58 (Mulhall Case) the spotlight was turned on the evidence provided by the employer to evidence that a laptop had been stolen. The Commission confirmed that there is a requirement for “clear or cogent evidence” to prove theft which can then lead to grounds for summary dismissal.

In the Mulhall Case, a driver was alleged to have stolen a computer bound for Harvey Norman, the employer based this decision on the following:

  • CCTV footage showing the employee loading other boxes on top of the computer which he did not scan;
  • Acting suspiciously while loading the packages including the computer onto his truck;
  • The computer never actually making the designated destination (and still missing).

Two main issues cost the employer $25,468.13 in compensation:

CCTV Footage

The CCTV footage was “flimsy” and unfortunately did not categorically show the following:

  • That the employee was actually stealing the computer;
  • The dimensions of the box purportedly stolen were different to the one shown in the footage;
  • The suspicious behaviour shown in the footage was speculative.

The Commission found that the footage relied upon to terminate the employee’s employment was frankly unreliable.

Footage not shown to employee

The employee was not given an opportunity to view the footage and respond to the footage. As such, not surprisingly the claim of theft was consistently denied by the employee. Without viewing the footage and actually being given a reasonable opportunity to respond to the evidence supporting the allegation, the Commission had a firm view that the principles of natural justice and procedural fairness were not applied. Breaches of these principles are usually fatal to an unfair dismissal defence.

Simple tips:

  • Do not rush into a decision to terminate the employee’s employment, in some instances a thorough investigation should be conducted (an employee could even be stood down during this process) for others giving an employee an opportunity to respond to the allegations should be best practice;
  • Consider the evidence at hand and make a decision based on balance, it is important to view them through independent eyes – independent advice should be sought.

For further information please contact Jonathan Mamaril, Principal on 07 3876 5111 or email jonathanm@nb-lawyers.com.au or our website www.lawyersforemployers.com.au.

Written by:
Jonathan Mamaril
Principal & Director, NB Lawyers – the Lawyers for Employers
07 3876 5111
jonathanm@nb-lawyers.com.au

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