Thursday, December 8, 2011

In Case: No Proof but Sacking Stands

Inconclusive video surveillance helped justify the dismissal of an employee for stealing $24.

In 2008, an employee who worked at an RSL in Brisbane was sacked for theft six days after the till was found to be $24 short of cash.
The discrepancy was found at the end of the day when the tills were counted. The RSL reviewed the log of transactions and noticed that there was only one transaction for $24.

They reviewed the video footage which showed that the customer had purchased a carton of beer, and then changed their mind. The employee had reversed the sale. A few minutes later the customer decided they did want the beer. The employee had opened the register and removed something both times. She was seen to put her hand under her t-shirt – which she later explained as adjusting her bra strap.

When the RSL sacked her, they refused to allow her to see the video footage and respond to it.
The employee appealed the decision with the employment tribunal of the time (now Fair Work Australia) by lodging an unfair dismissal claim. The tribunal upheld the sacking.

D.A. Whiting v Greenbank RSL Services Club Inc. [2008] AIRC1062 (30 June, 2008)

This case highlights a number of important points in employment law.

1. Proof ‘beyond all doubt’ is not required. The employer only needs to look at the evidence objectively and determine what was most likely.

The reason for this difference is that in a criminal trial, a person found guilty loses their freedom. To inflict such a serious punishment on someone requires us to be absolutely sure they did it. Termination of employment, or workplace discipline are (in the eyes of the law) far less serious punishments, so the level of proof required is different.

2. The importance of giving someone the chance to see and respond to evidence.
The tribunal came very close to overturning the sacking because the employee had not been allowed to see the video footage and respond to it. If you intend to sanction an employee, you must allow them to know what they are accused of and the evidence you have, so that they can properly defend their actions.
3. A vital part of the employment relationship is the trust between parties
In the unfair dismissal claim, the employee said that the punishment (sacking) did not fit the crime (theft). The tribunal said that there is an implied (unwritten and unspoken) part of the employment relationship that requires that both parties act in a way that is trustworthy toward the other. Stealing from her employer had violated this so there could be no further ‘relationship’.

*Please note I am not a lawyer, nor am I qualified as one. I am however an Employee Relations professional whose job it is to understand and apply employment law, often in some odd situations such as the one above!