QLD Does Colleague Have Grounds for Unfair Dismissal?

[Splinter]

A fellow colleague has been sacked and I feel he has grounds for unfair dismissal.

We work in the disability sector. He was unwrapping unopened Christmas gifts the week after new year at the environment he works. There are 8 clients in this environment. One of the gifts was a T Shirt which he sat on a table. When it was time for him to end his shift he gathered his stuff which some of it was on the table.

Later that night, he got a phone call from the staff on night duty asking if he had a taken a shirt home. He said no and when checking his bag he saw the shirt. He had accidentally picked it up when leaving. His wife told him to phone the coordinator which he did and told her he would just bring it back the next day. I think the next day he was called in to the office for a meeting with our manager and a staff member from Human Resources. They said that he had stolen the shirt and then sacked him.

This man is certainly not a thief. He has worked with this company for a few years and handled thousands of dollars in cash, his work ethic is fantastic. Does he have grounds to take this further?

 

[Clancy]

Whatever the circumstance or intentions, the employer has the right to consider this as theft.

The next step is to look to the award and or employment contract to understand the options the employer has available to deal with this. Did they exceed the available options? Probably not.

If he genuinely did not intend to take the T-shirt, then that is what we call a mistake with a heavy sprinkling if unlucky on top. Sorry to say, and now he gets to start looking for a new job.

 

[Splinter]

He certainly doesn’t want his job back. But every week there would be a circumstance where a staff member could forget to take keys to the med cupboard out of their pocket and take home and bring back the next day. Is that not classed as theft as well? He simply just thought it was part of his own belongings.

 

[Rod]

the employer has the right to consider this as theft.

No, they don't.

The employee would have a very good case for an unfair dismissal claim. Keep in mind he only has 21 days to lodge a complaint at the Fair Work Commission.

If he wants more than unfair dismissal, and it is possible he could, then see an employment lawyer about common law remedies for breach of contract.

 

[Clancy]

No, they don't.

No they don't? What no they don't?

As I understand it, the employee has already admitted to taking it. Then the employer did not believe his story that it was a mistake.

 

[Rod]

Just because an object is moved from one location to another by a person doesn't mean there is a right to an automatic assumption of theft.

Based on the OP's post I'd gladly go up against the employer for unfair dismissal at the FWC and even a common law complaint in court for breach of contract and feel very confident of winning.

 

[Clancy]

Just because an object is moved from one location to another by a person doesn't mean there is a right to an automatic assumption of theft..

I wonder how often that defense works? I would bet you have to somehow prove that the assumption of theft on the part of the employer was not a reasonable assumption... good luck with that.

 

[Rod]

Using your logic people would be guilty first, then have to prove their innocence. We don't have that system of law in Australia.

Employers often act rashly and capriciously. I could probably get the employer done just on their procedure, let alone the moving of the T-shirt.

Every case is different and people have been fairly sacked for taking $1 water bottles however I can't see fairness in this instance. I will qualify my answer in that we don't have all the necessary detailed facts but the OP is off to a good start with what he has presented to-date. There's a prima facie case for unfair dismissal here.

 

[Splinter]

I wonder how often that defense works? I would bet you have to somehow prove that the assumption of theft on the part of the employer was not a reasonable assumption... good luck with that.

I get your point Clancy. But surely the past history of the staff member should come into play like as in character references. He has outstanding work ethics, morals etc. he would never steal.

 

[Clancy]

Using your logic people would be guilty first, then have to prove their innocence. We don't have that system of law in Australia.

Hahahahahaha,,,,, that gave me a real good laugh! Do you even watch the news? I don't mean to be rude against you, i am rude towards the system in Australia which makes a JOKE of the concept of innocent until proven guilty. I regularly see people on the news losing jobs based on unproven allegations.

But all the above is besides the point since the worker admitted taking the T shirt. Now his explanation may sound perfectly reasonable, and a reasonable employer might accept that, but what 'legal' obligation does the employer have to believe him? None.