Near maximum compensation awarded to employee accused of theft
A recent Fair Work Commission (Commission) decision is a timely reminder that suspected employee theft must be clearly proven, particularly the intent to steal, before employers move to summary dismissal. In the case of Sazdanoff v Doc Pty Limited, a long-serving employee successfully challenged her dismissal, with the Commission awarding the near maximum amount of compensation in the unfair dismissal jurisdiction.
Key facts
The employee was engaged as a Pharmacy Assistant, with a tenure of 14 years, at the time she was accused by her employer, Doc Pty Limited (Company) of taking and consuming confectionery items without payment across several occasions.
The Company relied primarily on CCTV footage, which was shown to the employee briefly during an initial conversation, though the footage was incomplete and difficult to review. Following this interaction, the employee paid for the items in question. The following day, she was required by the Company to attend a formal meeting where the allegations were discussed, and she was asked to produce receipts.
In the meeting, the Company maintained that the employee’s conduct constituted theft and issued her with a letter that confirmed its decision to summarily dismiss her. Not long after, the employee lodged an unfair dismissal claim.
Key findings
In determining if the summary dismissal was warranted, Commissioner Damian Sloan considered that the Company had not established that the employee acted with the intention to steal. While the CCTV footage showed the employee consuming items, it did not demonstrate any attempt to conceal her actions or avoid payment, nor did it prove a deliberate intention not to pay. Further, it was held that the absence of receipts alone was not sufficient evidence of theft.
In her submissions, the employee argued that it was “common practice” for pharmacy staff to consume food items during shifts and to pay for the items at the end of the shift. Further, the employee explained that during the formal meeting, she felt “overwhelmed, distressed and intimidated”, meaning she was unable to properly respond to the allegations.
The Commission noted that the Company failed to provide clear evidence of any policy requiring payment prior to consumption and that the employee was not given a fair opportunity to properly review and respond to the allegations. Additionally, inconsistent treatment compared to other employees weakened the Company’s case.
Taking all factors into account, the dismissal was determined to be harsh, unjust and unreasonable, with the Commission ordering the Company to pay the employee nearly $24,000, equivalent to 22 weeks’ worth of pay.
Key takeaways
While most employers may view alleged theft to be a straightforward reason to dismiss an employee, this case highlights that establishing intent is crucial. Before proceeding with a summary dismissal, employers ought to remember:
- Allegations of theft require more than suspicion or circumstantial evidence. It must be demonstrated that there is a clear intention to steal.
- Policies relating to the purchase and/or consumption of goods must be documented in writing, well-communicated and applied uniformly across the workforce.
- Employees must be given a genuine opportunity to review evidence and respond. Rushed or incomplete processes can invalidate an otherwise legitimate reason for dismissal.
- Treating employees differently for similar conduct, lengthy tenure and prior conduct are all factors which are considered by the Commission in determining if a dismissal is harsh, unjust or unreasonable.
Learn more
If you’re considering dismissing an employee for theft, or would like to discuss the matters raised in this article, please contact NRA Legal on 1800 572 679 for a confidential conversation.
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