‘The week that was’ – Procedure all important

In this weeks’ edition of ‘The week that was’ we are exploring the different ways in which the Fair Work Commission has dealt with employees who have committed acts of theft in the workplace. Through the exploration of cases where an employee has been dismissed over allegations of theft, and consequently filed unfair dismissal applications, we can find out how important honesty and the concept of ‘coming clean’ is when it comes to the Fair Work Commission’s decisions. 

In the recent case of Adam Jolley v Cannon Hill Services Pty Ltd (U2019/14276), Mr Jolley, who was dismissed for stealing a can of Coke, was awarded $28,280 for unfair dismissal. The Fair Work Commission (The Commission) held that Mr Jolley’s immediate expression of remorse and his nearly 10 years of service and unblemished history with Cannon Hill Services (CHS), made the dismissal harsh and unfair despite the Commission holding that there was a valid reason for dismissal.

Significantly, a security camera recorded Mr Jolley stealing a can of Coke from an open vending machine located on site and when confronted with his actions, Mr Jolley admitted he ‘didn’t know why he did it as it was out of character’.

In a show cause letter, CHS stated that Mr Jolley’s behaviour constituted serious misconduct under its enterprise agreement and breached the company’s policies and trust. In response, Mr Jolley responded that he ‘felt it was okay’ to take the drink because the onsite vending machines had short-changed him in the past. Notwithstanding, he was very remorseful and offered to pay for the drink. However, CHS firmly held that Mr Jolley’s actions was of ‘such serious nature’ that it warranted dismissal.

Commissioner Simpson held it was relevant that Mr Jolley had an unblemished employment record of almost 10 years and that he was dismissed just prior to being eligible for pro rata Long Service Leave (LSL).

Notably, the Commissioner agreed with the submission that the decision in Qantas Airways Limited v David Dawson (C2016/7312) was distinguishable from the facts in this case because Mr Jolley was honest about his conduct when confronted with it and showed remorse for it. In particular:

“Mr Jolley owned up to taking a can of Coke with a likely value of $2 or $3 in circumstances where he had lost many times that amount to the same vending machines over a period of time without recompense”.

“Mr Jolley engaged in one instance of misconduct in nearly 10 years of otherwise unblemished service which, in its proper context was a one off opportunistic and momentary lapse of judgement in taking the can of Coke without paying for it. It was out of character for him and occurred in circumstances where it was the last working day before plant shut down, the vending machine door was left open and he had on multiple previous occasions paid money for an item from one of the vending machines without obtaining that item because of some operational fault in the vending machines.”

In calculating compensation, the Commissioner was satisfied Mr Jolley would have remained in employment with CHS for at least another six months (which equated to $42,900).The amount was reduced to $28,280 after a deduction of 20% for the misconduct and taking into account monies earned since dismissal. Mr Jolley was also entitled to payment of pro rata LSL.

Notably, in Qantas Airways Limited v David Dawson (C2016/7312) Qantas appealed the FWC decision that Mr Dawson, a long serving employee of Qantas for 28 years was unfairly dismissed for stealing alcohol from a flight. He had stolen one can and one bottle of beer, a 50ml bottle of gin and two 50 ml bottles of vodka. In dismissing Mr Dawson, Qantas relied on the theft and Mr Dawson’s deceptive responses during the investigation about how the alcohol came to be in his possession.

Deputy President Lawrence held that there was a valid reason for the dismissal as Mr Dawson ‘gave a rather fanciful explanation’ and changed ‘his story during the investigation after giving an incorrect explanation’. However, Deputy President found that the dismissal was harsh due to Mr Dawson’s 28 years of unblemished service, the small value of the items stole, his age (50 years old) made it difficult to get another job, certainly as a flight attendant, the fact that ‘although he gave an incorrect explanation, he did correct it’ and he had a number of medical and family issues prior to the incident.

Mr Dawson was awarded the maximum compensation of $33,731 equivalent to 26 weeks of his earnings.

The Full Bench of FWC allowed the appeal on the basis that the Deputy President failed to take into account the employee’s dishonesty. In particular, the appeal decision noted that Mr Dawson only changed his position when he was confronted by findings that the hotel did not stock miniature bottles of alcohol.

The Full Bench decided that the dismissal was not unfair and stated that whilst ‘they empathised with Mr Dawson’s personal, family and financial circumstances, these did not outweigh the prohibited conduct’.

In this case, the employee’s longstanding and unblemished employment record was not enough to outweigh proven serious misconduct, seemingly due to the fact that Mr Dawson had not been honest and remorseful from the beginning of the investigative process.

Mr Jolley’s matter is also distinguishable from David Thomas and Frederick (Junior) Faamausili Ailua v Virgin Australia Airlines Pty Ltd t/a Virgin Australia [2019] FWC 4464 where ground crewfor Virgin stole two packets of cigarettes from a cargo shipment which was damaged andpartially open after a flight. Both staff in that matter denied stealing the cigarettes andcontinued to deny doing so.

The Commission found that the applicants’ dismissals were not unfair and pointed to their deception and dishonesty specifically in the following findings:

‘…Theft is theft – no matter the value. However, had the applicants not been untruthful during their investigation and in their evidence before the Commission and in Mr Thomas’ case, his self-serving concoction of invention, I might have put their conduct, particularly in Mr Faamausili Ailua’s case, down to a stupid and very bad error of judgment. By not admitting their conduct, I am reminded that it is often not the conduct itself that determines one’s fate, but the subsequent attempt at cover-up. Nevertheless, regrettably, the applicants have ‘made their bed and must now lie in it’.

These cases highlight that ongoing dishonesty during an investigation is an overwhelming factor contributing the loss of trust and confidence between the applicant and employer that the length of service cannot restore. As such, the key takeaway for employees is to be honest and forthcoming about any misconduct you have engaged in.