Employees accused of theft reinstated by FWC

Three employees who were terminated after CCTV footage captured them finding and taking uniform items from an open cardboard box in their workplace have been reinstated by the Fair Work Commission.

The employees were initially stood down by their employer pending an investigation into the conduct.

During the investigation the employees were represented by their union. In a strange sequence of events, after reviewing the CCTV footage, the union asked the employer whether it would allow the employees to resign. It came to light in the hearing that the employees were not aware that the union had done this.

The resignation proposal was rejected and the evidence was that the employer wanted to make an example of these employees by dismissing them and indicated that the police may be contacted. There were further discussions about the resignation proposal (again without the employees’ knowledge), that resulted in the employer reluctantly agreeing to allow them to resign. The union then dictated the resignation letters for each of the employees to write and their resignations were provided to the employer.

The employees commenced unfair dismissal claims on the basis they were forced to resign.

In the decision, the Fair Work Commission accepted that the employees were forced to resign as an alternative to the employer terminating the employees for serious misconduct and calling the police.

The FWC then went on to find that the conduct by the employees was not ‘theft, or serious and wilful misconduct’.  Instead, the FWC stated that ‘the proper characterisation of the wrong doing of [the employees] was a failure to follow the prescribed procedure for acquiring uniform work clothing’.  The FWC was ‘not convinced’ that the evidence was of sufficient quality ‘to enable [it] to be satisfied that the applicants intended to permanently deprive [the employer] of the items of uniform work clothing’.

The FWC then noted the employees clean employment histories and found that the dismissal of these employees was disproportionate to the conduct. Accordingly, the employees were reinstated.