In this Justitia communication, we continue our round-up of recent cases, sharing key developments and cautionary lessons to help your organisation navigate staffing matters with clarity and confidence.
Chocolate theft case – theft cases are not always cut and dried.
In this case the Fair Work Commission (the Commission) found in favour of a pharmacy assistant who stole chocolate hearts, cookies and other tasty treats from her employer. She had been employed for 14 years. She was awarded compensation of almost $24,000 (22 weeks pay), plus superannuation.
The pharmacy owner confronted the assistant towards the end of her shift with the allegation “we’ve caught you stealing”. He showed the assistant CCTV footage of four incidents which depicted her taking and consuming treats, in some instances, with her colleagues. The assistant said her boss was “rushing through partial clips that initially failed to load and intermittently froze” and then gave her a letter inviting her to a meeting the following day. Following this conversation, she paid for the items.
At the meeting the next day, the owner asked if she had receipts for the stolen items. The assistant said “she felt overwhelmed, distressed and intimidated, and was unable to explain her position properly”. The owner proceeded to dismiss her for “serious misconduct warranting summary dismissal”.
The Commission accepted the assistant’s explanations for the “thefts”. It found that the footage actually showed:
- The assistant ate a “Byron Bay cookie” behind the pharmacy counter and paid for the cookie later that day.
- The assistant took two chocolate hearts and gave one to a co-worker. The footage did not show that she ate the chocolate heart.
- The assistant opened a “Rainbow Nerd Rope”, ate a small piece, and gave the remainder to co-workers. The assistant said it was a new product, and she assumed her co-workers would pay for the item as they “finished it off”.
- The assistant and a co-worker shared a packet of “Curly Wurly Squirlies”. The assistant said she believed her co-worker would pay for the item as they had suggested to share it.
In all instances, the footage showed that she did not attempt to conceal her conduct.
The Commission was also critical of the pharmacy for:
- rushing through partial clips of footage, without giving the assistant the opportunity to properly view it;
- failing to reach the Briginshaw standard – the more serious the allegation, the stronger and more compelling the evidence must be to prove it on the balance of probabilities;
- seeking to rely upon policies and procedures which required staff “to pay for items on your break and consume them on your break”, in circumstances where the assistant was terminated on the grounds of theft, and not for breach of workplace policies; and
- treating the assistant more harshly than her colleagues, who were given a first and final warning.
Key takeaways
- Theft isn’t a cut and dry basis for summary dismissal.
- Rushing through the termination of an employee’s employment can lead employers into error.
- Relying upon CCTV as a basis for termination is problematic – employers still need to follow a process that provides employees with an opportunity to respond to allegations, and for the employer to carefully consider those responses together with the circumstances.
- If there are multiple grounds for the termination of employment, each ground should be clearly identified during the misconduct process leading to termination.