A worker sacked for taking three bottles of liquor from a discarded esky has won his unfair dismissal claim.
The Fair Work Commission slammed the employer for not giving the worker procedural fairness.
It found the incident did not constitute ‘theft’ and additionally, found the actual reason for the dismissal involved the worker refusing to sign a new contract.
Commissioner Peter Sams ordered the employer to reinstate the worker.
“If this was a matter of such grand larcenic proportions, it beggars belief that the respondent did not demand recompense, or at the very least, return or replacement of the liquor.”
Three bottles of liquor left over from Melbourne Cup
Jason Thomas worked as a Network and Engineering Manager for Metwide Communications for five years.
The company dismissed him in February 2018 for serious misconduct, namely the theft of property.
A few weeks earlier, a colleague asked him to help discard the contents of a large esky that had been in the office since Melbourne Cup day the previous year.
When the pair took the esky to a dumpster, Thomas noticed that among the empty bottles, were:
- a full bottle of Johnny Walker Red Label scotch whiskey,
- a bottle of Jack Daniels and
- a bottle of Jim Beam.
He subsequently retrieved them from the dumpster, cleaned them, and took them home.
He did so in full view of the work colleague.
During a subsequent investigation, Thomas denied stealing because the manager instructed him to discard the alcohol.
Therefore, he considered the company had abandoned the alcohol.
However, Metwide General Manager Dale Edwards didn’t agree, and subsequently sacked Thomas for serious misconduct.
Bottles of liquor discarded
Thomas’ legal counsel relied on the factual, legal and common-sense meaning of ‘theft’ to argue no theft had taken place.
He described the contents of the esky as “discarded” by instruction of the General Manager.
Nobody owned it, so therefore, nobody could steal it.
Additionally, he noted Thomas had not tried to hide the removal of the liquor.
Furthermore, he suggested management used the ‘theft’ as an excuse to sack him, because he refused to sign a new employment contract a few months earlier.
The new contract involved substantially inferior terms and conditions.
Finally, he noted the company did not report the matter to police, and did not ask for the return or replacement of the liquor.
In response, Metwide General Manager Dale Edwards argued the alleged stolen property had value to the company.
He said Thomas should therefore have volunteered to return it, without being asked.
Making ‘mountains out of molehills’
Commissioner Sams described Edwards as “an evasive, uncooperative and ultimately, unconvincing witness.”
“For the most part, his evidence was self-serving and/or exaggerated in order to justify ‘making mountains out of molehills’.
“There can hardly be a more serious allegation against an employee than theft of company property.
“It has the potential to damage an employee’s reputation and career, not to mention the possibility of criminal charges.
“Although I accept that Mr Edwards only had to have a belief on reasonable grounds, that the conduct has occurred such as to justify the applicant’s immediate dismissal, serious allegations of this kind, amounting to criminal activity, should not be thrown around, like confetti, without any sound basis or proper investigation.”
Commissioner Sams found Metwide failed to give Thomas an opportunity to respond or explain his conduct, describing it as “a manifest denial of procedural fairness”.
Furthermore, he criticised the company’s suggestion that Thomas should have returned the liquor without being asked as “nonsense”.
“Moreover, I suspect that even if he had, it would have made not a skerrick of difference to Mr Edwards’ determination to dismiss him.
“It is possible, if not likely, that the real reason Mr Edwards wanted to dismiss the applicant was because he had refused to sign a new employment contract in December 2017 and the ‘theft’ allegation was a convenient opportunity to dismiss him.”
Commissioner Sams concluded Thomas was not guilty of theft, and therefore, Metwide did not have a valid reason for dismissal.
He ordered the company to reinstate Thomas and reimburse his lost earnings.
Miles Heffernan from Fair Work Claims says the case is a lesson for all employers.
“Even if an employer sacks a worker for serious misconduct, they must offer procedural fairness,” he said.
“Employers must investigate allegations and they must give the employee a reasonable opportunity to respond.
“Theft is an extremely serious allegation, which amounts to criminal activity, so employers need to ensure they have sufficient evidence before taking action to sack a worker.”
For help, please call Fair Work Claims today on
1300 324 748
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