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Fair work Commission Rules Theft is Theft and You Can be Dismissed

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The definition of serious misconduct, under Fair Work Regulation 1.07, includes theft, fraud, assault, intoxication at work and the refusal to carry out lawful and reasonable instructions consistent with the employment contract. Thus, stealing from your employer or engaging in theft, may constitute a valid reason for dismissal. But what if the value of the theft is relatively small or insignificant? Should I be honest and admit to the theft if I am guilty?

Untruthful Employee Rendered Dismissal Fair

In the unfair dismissal case relating to serious misconduct at the Fair work Commission Lynelle Ajax v Credit Union Australia Ltd,[1] an employee was accused of “financial misconduct” after she had misused the employer’s coffee account to pay for 24 coffees for her personal consumption.

The employer is a member-owned credit union and had a coffee account set up for their members. If a member wanted a tea, coffee or other beverage, the employee was required to go nearby to the local café and place and order for the member, which would be charged to the employer’s account. The use of the account was limited to these ‘business situations’ and it was not in place for staff to utilize for themselves.

In June 2020, the employer was provided with an invoice from the café and it appeared high considering all of Australia was in some form of lockdown due to COVID-19. Upon further inquiry, the employer alleged that the employee had misused the account to purchase 24 coffees for her personal consumption, valued at $101.70.

The employee denied using the Employer account for anything other than business purposes, except for one instance where she admitted to charging the account because the barista made the incorrect coffee and she gave it to a colleague. Further, the employee disputed the allegations and provided in response that the transactions were not for her personal coffee as she preferred to drink piccolo lattes (which was distinct to the regular coffees charged to the account).

That the members continued to visit the branch during the COVID-19 shutdown and that she would offer coffees to the members being served and those waiting outside due to capacity limits.

Despite the employee’s response and defence, the employer found that based on the investigation, the allegations were substantiated and the employee was terminated for serious misconduct, specifically theft.

Fair work Commissioner Hunt held that the employee provided untruthful evidence in an attempt to clear her name in the financial industry and therefore she was not a credible witness. The employee was found to have had a “cavalier attitude to the coffee account” and that on the balance of probabilities, she had jointly misused the account and this justified dismissal.

Commissioner Hunt also indicated that the employee’s conduct struck “at the heart of her duties” to the Employer to be honest in all transactions involving the use of company funds. Working in the financial industry required a high level of integrity and that the industry cannot afford to have an employee be untruthful over transactions.

Accordingly, Commissioner Hunt was satisfied that there was a valid reason for dismissal given the conduct of the employee, the employee’s untruthful statements and the nature of the financial industry requiring a high level of honesty.

This case demonstrates that there is a high level of trust and integrity required from employees in positions which require them to handle money. Nevertheless, being untruthful about potential misconduct will inevitable cause a loss of trust and confidence in the employment relationship.

This is evinced in the case of David Thomas and Frederick (Junior) Faamausili Ailua v Virgin Australia Airlines Pty Ltd t/a Virgin Australia,[2] where Virgin ground grew were accused of stealing two packets of cigarettes.

The cigarettes were stolen from a cargo shipment which was damaged and partially open after a flight. Both staff members involved denied stealing the cigarettes and continued to deny doing so.

Fair work Deputy President Sams subsequently held that the employees had stolen the cigarettes and pointed to their deception and dishonesty specifically in the following findings:

[116] In my view, Virgin’s evidentiary case provided a sound, logical and rational foundation for the Commission, to be satisfied that the applicant’s denials of involvement in the theft, cannot be accepted. Obviously, neither applicant pleaded the severity (harshness) of their dismissal in the context of a theft amounting to just two packets of cigarettes, valued at probably less than ~$50.00 total. To have done so, would be to contradict their consistent line that they had not done anything wrong and had neither stole, nor received stolen freight. Whether it was a relatively small value theft or something more substantial, is really not the point. 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’. I am satisfied the allegations against the applicants have been proven. I turn now to the matters the Commission is required to take into account under s 387 of the Act.”[3]

Deputy President Sams

Where there is no dishonesty on the part of the employee whom is accused of theft, the Fair Work Commission may look at their conduct favourably. Nevertheless, the value of the theft is not the point.

Employee Admits to Stealing – Dismissal Rendered Harsh and Unfair

In the unfair dismissal case of Adam Jolley v Cannon Hill Services Pty Ltd,[4] an employee was dismissed for theft after he stole a can of Coke from the vending machine located on site. When confronted about his actions, there was no deception or dishonesty on the part of the employee and he admitted to taking a can of coke with a likely value of $2 or $3. The employee did indicate that he had lost money many times to the same vending machine over a period of time without recompense.

Ultimately, Fair work Commissioner Simpson held that there was a valid reason for dismissal for theft but overall, the dismissal was harsh given the mitigating circumstances. The employee was honest, forthcoming, expressed remorse immediately and had a long and unblemished period of employment with the employer.

It is clear that there is no minimum threshold for conduct to constitute theft – theft is theft no matter the value of the theft. The important lesson for employees is to remember to be honest, forthcoming, transparent and cooperative with their employer when such allegations arise. Being dishonest or untruthful will inevitable destroy the trust and confidence between an employee and their employer.

Have Issues/, have concerns, give us at A Whole New Approach P/l a call, we are not lawyers, but the nations leading workplace advisors. We are here to help., honest advice, straight forward advice. Call on 1800 333 666


[1] [2021] FWC 3165.

[2] [2019] FWC 4464.

[3] Ibid at [116].

[4] [2020] FWC 2404.

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