Termination disproportionate to theft

Not only has the Fair Work Commission (‘FWC’) found that an employee was unfairly dismissed following findings of theft being made against him, but the FWC also awarded the employee significant compensation.

In an eye-opening decision for employers, the FWC heard that the flight attendant was dismissed after a small amount of alcohol was found in his possession during a random search of crew after a flight in February this year.  During the initial investigation, the Applicant claimed that he had inadvertently removed two beers, two 50ml bottles of vodka and a 50ml bottle of gin from the plane, claiming they were pocketed in the process of serving passengers.  At a later date, the Applicant then admitted to stealing the two beers, although he continued to claim he had inadvertently pocketed the vodka.

The Applicant conceded that the removal of these items without authority was a breach of Qantas’ policies.

However, the Applicant argued that his personal circumstances were not taken into account when making the decision to terminate him.  He also noted that two other crew members were found with company property, but only one of them was dismissed.  There was no criticism of the termination process followed by Qantas.

In his decision, Deputy President Lawrence confirmed that Qantas had a valid reason for the dismissal, noting the admission by the Applicant as to his stealing of the two beers.  However, DP Lawrence then went on to find that the dismissal was disproportionate to the offence, noting, among other things, the Applicants 28 years of unblemished service, the small value of the items, and the difficulty he would face in getting another job.  On that basis, DP Lawrence determined the dismissal to be unfair.

DP Lawrence determined that the Applicant would have spent the rest of his working life as a flight attendant, being 15 years, and so his lost earnings were significant.  Following relevant deductions for the Applicant’s misconduct, the Applicant’s projected loss was still in excess of the maximum compensation for the jurisdiction, and so the Deputy President reduced the compensation to the maximum compensation threshold of 26 weeks’ pay.

This case is another reminder to employers as to the high level of conduct necessary to justify the immediate termination of an employee.