A recent Fair Work Commission decision is a timely reminder that allegations of theft must be handled carefully. Even where misconduct appears serious, employers must still have evidence and follow a fair process before dismissing an employee.
What happened
The employee worked for a garden and landscape supply business. The employer became concerned about missing stock after identifying discrepancies relating to a sawdust product. Management believed several hundred units were unaccounted for and formed the view that the employee was responsible.
Other staff told management that deliveries of the product had been sent to the employee’s private property while she was on leave. The employee did not deny the deliveries but said she intended to pay for the product once she returned to work.
Before any formal disciplinary meeting took place, the employer decided to end the employee’s employment. The dismissal was communicated informally and the employee was not given written allegations, evidence, or an opportunity to respond before the decision was made.
What the Fair Work Commission considered
When assessing unfair dismissal, the Fair Work Commission looks at both the reason for dismissal and whether the employer followed a fair process.
Was there a valid reason?
The Commission found the employer could not clearly establish that theft had occurred. There was no reliable evidence confirming that the stock belonged to the business at the time of delivery, that it was taken dishonestly, or that the employee never intended to pay.
Suspicion alone was not enough to justify summary dismissal for serious misconduct.
Was procedural fairness followed?
The Commission was critical of the process. The employee was not:
- told of the allegations in clear terms
- provided with the evidence relied upon
- given a chance to respond before the decision was made
Failing to follow these steps weighed heavily against the employer.
The outcome
The Fair Work Commission found the dismissal was harsh, unjust and unreasonable. The employee’s unfair dismissal claim was upheld.
Key lessons for employers
This case reinforces several critical principles for managing misconduct:
- Allegations of theft must be supported by evidence, not assumptions
- Employees must be notified of allegations and given a genuine opportunity to respond
- Decisions should be made only after considering the employee’s explanation
- Serious misconduct does not remove the obligation to follow a fair process
In HR Command, these steps are built into misconduct workflows, investigation checklists, and dismissal processes to help employers avoid exactly this outcome. When employers follow a structured process and seek legal input early, the risk of unfair dismissal claims drops significantly.
