Worker sacked after being falsly accused wins over $14K
A Queensland sacked for serious misconduct has recently been awarded over $14,000 by the Fair Work Commission. The worker had been accused of breaking and entering as well as theft, with her employer even taking the matter to the police. This case goes to show that employers who unjustly accuse their workers end up paying big.
In this article, we detail the events of this case as well as another recent decision by the FWC. In that case, the worker was fired for serious misconduct for drawing a penis on client property. This made for some truly bizarre evidence presented to the commission.
Support worker wins big after serious misconduct dismissal gets quashed
The dismissal case Petra Molokac v Evolving Support Services Pty Ltd [2024] involved Petra Molokac. Who started working for Evolving Support Services as a disability support worker in May 2023. The first issue with her time at the organisation surfaced in February 2014. This was when Ms Molokac posted a message in a team WhatsApp group calling staff “useless.” Although the message was deleted, screenshots were taken by team members.
Ms Molokac acknowledged the message was sent. However, she explained it was a mistake and apologised to a colleague, who felt the message was directed at her, even though she was not named in the message. This colleague accepted Ms Molokac’s apology. She emphasised that her intent was to ensure team efficiency and cooperation, not to bully.
Worker accused of bullying and theft
In March 2024, Evolving alleged that the message sent by Ms Molokac constituted bullying. She was subsequently transferred from working with her regular client to another due to the allegation. She was told that a workplace investigation would be conducted into her conduct.
On 14 March, Ms Molokac did something that ultimately saw her sacked for serious misconduct. She had visited her previous work site to collect her personal belongings and return a garage door remote control. Evolving, however, considered this action “breaking and entering.” The company also accused her of not leaving the garage door control at the property.
It also accused Ms Molokac of stealing “numerous items” from the property. In its evidence to the FWC, Evolving said that it “could not be sure” what items Ms Molokac had taken. The company, however, maintained that she had committed “criminal trespass.”
Worker provided evidence of ownership
Evolving argued to the Fair Work Commission that it did not know that Ms Molokac had personal property at the location. It asserted that had she informed them of this fact, someone could have met her at the property to collect it. Evolving claimed that Ms Molokac had entered the property while no clients or staff were present.
She provided receipts to prove ownership of the items she retrieved, asserting that she accessed them as part of her routine work duties. She denied Evolving’s accusation of breaking and entering.
The employee argued to the Fair Work Commission that she had been working with two clients at the property for ten months. She said that her entering the property “wasn’t a secret and she didn’t see anything wrong with her going to the house to collect her belongings.” Ms Molokac said was not aware that she was not allowed to enter the house.
Worker is sacked
The next day on 15 March 2024, Ms Molokac was on sick leave when she received a text from her manager asking if she had entered Evolving’s property to retrieve items. She replied asking for further information regarding the allegation.
Later that day she received a Serious Misconduct and Termination Letter. The letter said that she had committed “criminal trespass.” Ms Molokac said that the letter was dated 13 March 2024 and that she was dismissed without any warning or chance to defend herself.
Alleged stolen items revealed post dismissal
On 16 March 2024, an Evolving worker reported to the company that several birthday planning items belonging to a client were missing from the property. A few days later, Evolving reported the alleged theft to Queensland Police. But the police investigation into the alleged theft was dropped in April 2024 due to a “lack of evidence.”
Ms Molokac argued to the Fair Work Commission that this further demonstrated Evolving’s lack of genuine belief in the accusations against her.
Worker makes case to Fair Work Commission
In her unfair dismissal claim, Ms Molokac argued to the Fair Work Commission that Evolving had denied her procedural fairness prior to firing her for serious misconduct. She claimed the company did not properly investigate the alleged theft. She also argued she was not informed about her alleged bullying. Ms Molokac said she was only made aware of this allegation after Evolving submitted it as evidence to the FWC.
Ms Molokac denied stealing any items. She said that it was “unreasonable” for Evolving to have accused her of theft while she was on sick leave. The employee also noted that when she asked for more information regarding the accusation, she was sent her termination letter. She contended that there was no valid reason for her dismissal.
Fair Work Commission rules on unfair dismissal case
The Fair Work Commission found that the reasons given by Evolving for Ms Molokac’s sacking were not substantiated. The employer accused her of entering a property without permission and removing items that they alleged did not belong to her. However, the evidence showed that the property Ms Molokac removed was indeed hers and that she returned the garage remote control as required.
The commission found that the timing and method of this notification were problematic. It was acknowledged the dismissal occurred without prior discussion or opportunity for Ms Molokac to respond to the allegations, violating basic procedural fairness.
The unfounded criminal allegations and the distress caused to Ms Molokac were significant factors in the Fair Work Commission’s decision. It highlighted the harsh impact the dismissal had on Ms Molokac, emphasising the lack of procedural fairness and the severe personal consequences she faced.
She was ultimately found to have been unfairly dismissed and was awarded $14,400 in compensation, along with superannuation contributions.
Worker who carved p…s into tank fired for serious misconduct
Another recent Fair Work Commission case involving a worker sacked for serious misconduct is Robinson v Wulguru Steel P/L [2024]. Joshua Robinson began working for steel fabrication company Wulguru Steel in April 2021. In September 2023, the company was contracted by Puma Energy to perform remediation work on a fuel tank in Townsville.
On 10 October 2023, Puma Energy reported discovering a crude drawing of a p…s and some words ground into the paintwork on the tank’s roof. Wulguru Steel subsequently launched an investigation into the incident, which saw Mr Robinson interviewed by the general manager. He denied having anything to do with the drawing. Despite this, later that day he was sacked for serious misconduct.
“I don’t give a f**k if I lose my job:” Witness caught boilermaker in the act
Several Wulguru Steel employees gave evidence to the Fair Work Commission. One of these was a boilermaker who claimed to have caught Mr Robinson in the act. The boilermaker had gone to see what Mr Robinson was up to as he noticed he was grinding the tank, which was outside the scope of work.
“I went over to Josh to see what was wrong. It was then that I noticed graffiti of a penis ground into the tank roof,” the boilermaker told the Fair Work Commission.
He then asked Mr Robinson what he was doing, who said “it was just a bit of fun and that he was bored.” The boilermaker then suggested that they could paint over the drawing to ensure it was not visible to the client. However, Mr Robinson simply replied that “he didn’t care and that it can stay there.” The boilermaker later brought the drawing up again with Mr Robertson, who replied “that it can say there” and “I don’t give a f**k if I lose my job.”
The boilermaker testified to the Fair Work Commission that the p…s was “about the size of your hand” and that it had a “scrotum.” Mr Robertson’s drawing was subsequently discovered by the client and reported to his employer.
“It was very disappointing walking the tank today & finding a P…s & wording ground into the paint work of the Tank Roof,” the client said in an email to Wulguru Steel. He added that the serious misconduct was “totally unacceptable” and that the culprit should be “found & removed from site.”
Application to Fair Work Commission
In October 2023, Mr Robinson filed an unfair dismissal application with the Fair Work Commission. He sought compensation of $24,225, the equivalent to 17 weeks of pay. In its defence, Wulguru Steel argued that it had sacked Mr Robinson for two main reasons. The company claimed Mr Robinson had committed serious misconduct by engraving an offensive image on the client’s tank.
Additionally, it asserted that this act had caused the company to lose pending contracts with Puma Energy, resulting in significant financial loss. However, the Fair Work Commission rejected the financial impact argument. It noted that the company only learned of the lost contracts on 19 October 2023, a week after the dismissal.
Was the worker responsible for the graffiti?
The Fair Work Commission needed to determine if Mr Robinson had indeed drawn the graffiti. However, this task was complicated by conflicting testimonies. Mr Robinson had denied any involvement in the graffiti. He challenged the credibility of the boilermaker’s testimony and said his lack of immediate reporting was evidence of falsehood.
The Fair Work Commission emphasised the need to base its decision on the balance of probabilities, rather than merely evaluating the employer’s belief. Despite the boilermaker’s reluctance to report the incident, he was deemed to be truthful and consistent. His explanation for not immediately reporting the graffiti was considered reasonable given his perspective on workplace camaraderie.
Fair Work highlights “motivation to lie”
Meanwhile, the Fair Work Commission noted that Mr Robinson did not provide any credible explanation why the boilermaker or other witnesses would lie. In addition, Wulguru Steel’s documentation, including a termination letter and a file note, indicated that Mr Robinson had admitted to the graffiti.
Ultimately, the Fair Work Commission concluded that he had drawn the graffiti and had admitted to it during a meeting prior to being sacked. It was found that Mr Robinson “had a motivation to lie”. That “none of the other witnesses had a similar motivation”.
“Beyond a bare denial by the Applicant, there is simply no evidence before me to convince me that the Applicant did not draw the p…s,” the Fair Work Commission stated.
Was it serious misconduct?
Having determined that Mr Robinson had drawn the p…s, the Fair Work Commission then examined whether the act constituted serious misconduct justifying instant dismissal. The Fair Work Act 2009 states that serious misconduct is “wilful or deliberate behaviour” by an employee. In turn that is not consistent with the continuation of the employment. It is also defined as conduct that “causes serious and imminent risk” to the reputation, viability or profitability of the employer’s business.
Wulguru Steel argued that Mr Robinson’s actions met this definition. It highlighted the offensive nature of the graffiti and its negative impact on the company’s reputation and profitability. The Fair Work Commission agreed, confirming that the act of drawing the p…s amounted to serious misconduct.
Mr Robinson’s sacking was therefore deemed valid and his unfair dismissal claim was rejected.
If you have been terminated for any reason, call us
If you believe your sacking for serious misconduct or any other reason was harsh, unjust or unreasonable, we can help you take action through the Fair Work Commission. Our workplace mediators are among the best in the country. We have decades of experience helping workers make unfair dismissal claims. Concerned about workplace harassment, or adverse action against you in the workplace give is a call. Don’t wait until your terminated.
We offer a no win, no fee service to workers in every Australian state and territory. Make sure to contact us as soon as possible, as you only have 21 days from the date of your dismissal to make a claim.
Call A Whole New Approach today on 1800 333 666 for a free and confidential consultation.
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