VIC Suspension from Work for Alleged Theft - What to Do?

[John Allan]

As part of a settlement, you can request that your dismissal is reported as a resignation. They can then give you a statement of service with resignation as the reason you left. It's not a reference but it's something.

Obviously, you can seek to be reinstated as part of your unfair dismissal claim but that may not suit you or them. All I can really say with certainty is don't miss the time frame you have to lodge your claim. Having said that longer periods of time are permitted to apply under the 'adverse action' claim as opposed to unfair dismissal. Your lawyer should know all about that and will advise you accordingly. Good luck mate.

Let me know how you get on.

 

[broomie21]

Thanks John, I appreciate your help.

 

[broomie21]

I have been sacked for supposedly stealing money from a customer's wallet that was handed in at the store. It became a police matter and it looks as though they will drop it due to not enough evidence.

I am in the process of launching an unfair dismissal case and have just been informed that there is a policy in the employment procedure book that states that 'any handed in personal effects' must be written down in a book specifically designed for this use.

Not only does the company not have one but the wallet in question was just left lying on a bench with no information on it. Whilst trying to locate the owner as part of my management duties, I was pinned for stealing money out of it? I still have no proof or evidence that there was indeed money in it?

Just wondering if this helps my unfair dismissal case as I'm going it alone.

Cheers

 

[Serge Gorval]

Hi Broomie

I've been defended several cases that revolved around alleged theft, I'll give you a quick run through.

Firstly, in dealing with the criminal issue, if you have not already done so, do not, and I repeat, do not take part in any interview, ERISP or discussion with the police. Majority of the cases become prosecuted because of voluntary admissions made.

Employment:

There is a general common law right to suspend an employee for the purposes of investigating serious and wilfull misconduct. However, there is a famous case which outlined that the standard for such an allegation must be very high ( Brigg v Shaw standard).

Noting that you consider your termination to be unfair, there's 2 claims that potentially exist.

A claim for unfair dismissal made in the FWC ( maximum award 6 months salary) or a breach of contract claim which will significantly increase your compensation ( reasonable notice, damages etc).

 

[broomie21]

Thanks heaps Serge

I have already had an interview with police about 3 weeks ago and no charges laid. They said I possibly still could be but my lawyer seems to think it is nothing to worry about.

With the unfair dismissal claim, I have filed this through the FWC and they have taken the $68 fee for doing this so I suspect that this is happening soon. I am going it alone because the no win no fee option would potentially lose me a pile of money if I was to win?

Any help for moving on with this by myself would be greatly appreciated.

Cheers

 

[Serge Gorval]

Hi Broomie

I don't quite understand why you think you would lose on a no win no fee arrangement. I think you were to be successful unless your lawyer is not agreeing to cap his cost?

Honestly, my recommendation is to be represented at the telephone conciliation. By no means take it lightly because if the matter isn't resolved, it will automatically proceed to a hearing before a member which will require you to prepare substantially more e.g. submissions, witness statements, hence, if you fail to get yourself a settlement at conciliation you're going to struggle later on.

You also need to also tailor your approach depending on which conciliator is conducting your matter. without naming names, some are renowned to take a particular approach based on what information you present. Unfortunately, that is only something you can get with experience after conducting of 100's of conciliation.

Have you received your notice of listing?

 

[Tim W]

However, there is a famous case which outlined that the standard for such an allegation must be very high ( Brigg v Shaw standard).

Do you perhaps mean the Briginshaw principle?
It is indeed famous. So famous that I am truly surprised that a lawyer could get it wrong.

 

[broomie21]

Hi Broomie

I don't quite understand why you think you would lose on a no win no fee arrangement i you were to be successful unless your lawyer is not agreeing to cap his cost?

honestly, my advice is to be represented at the telephone conciliation, by no means take it lightly because if the matter isn't resolved, it will automatically proceed to hearing before a member which will require you to prepare substantially more e.g. submissions, witness statements hence if you fail to get yourself a settlement at conciliation you're going to struggle later on.

You also need to also tailor your approach depending on which conciliator is conducting your matter. without naming names some are renowned to take a particular approach based on what information you present, unfortunately that is only something you can get with experience after conducting of 100's of conciliation.

have you received your notice of listing ?

Thanks again, Serge.

My reasoning for not using a no win no fee lawyer is because I have found that they take around 40% of your entitled compensation. I have a very strong case so I was not happy with losing so much money if I win.

I have not yet received my notice of listing?

Regards