The Fair Work Commission has decided despite having “considerable sympathy” for a staff member who says he was told it was okay to take items from an IGA store without paying, his employer was within its right to sack him.
In an unfair dismissal case decision handed down yesterday, Fair Work Commission deputy president Reg Hamilton ruled it was not harsh, unjust or unreasonable for a director of the Castlemaine IGA supermarket to dismiss a staff member who was found to have left the store with three items he had not paid for.
The Commission heard that on February 7, the director stopped and searched the staff member and found the three items that were being removed from the store. Police were called but no charges were laid, and the staff member was summarily dismissed that day.
The employer had clear policies in place around the removal of stock, and could indicate several aspects of its code of conduct policies that prohibited this.
However, when launching unfair dismissal proceedings, the staff member claimed he had not really been trained in the policies, and that his supervisor in the workplace had authorised him and other staff members to take home items without payment in the past.
This policy was not known to the director of the company, who told the Commission he was completely unaware of that arrangement.
In the decision on the case, deputy president Hamilton reflected that the staff member appeared to concede to some “ambiguity” on the arrangement of taking items from the store, and observed it was a clear breach of company policies anyway.
“Employees are or should be aware that it is not appropriate to mix private and employer property,” Hamilton said.
Given the arrangement to take stock for free was not bona fide, the Commission decided the dismissal was just and that the staff member should have known any arrangements were still a breach of policy.
“I have considerable sympathy for [the staff member], but he has made a serious mistake,” deputy president Hamilton said.
Bianca Mazzarella, employment lawyer at McDonald Murholme, tells SmartCompany this case indicates employers can be protected from managerial staff coming up with their own rules, as long as a strong company policy is put in place from the start.
“I think what stands out in this case is that on a first reading, what the deputy president pointed out is that even though [the worker] relied on his supervisor’s authority to take items, he couldn’t rely on ignorance,” Mazzarella says.
“He should have been aware that the arrangements might not have been ideal or appropriate.”
In this case, the fact that the employer had formal loss prevention and staff conduct policies in place helped ensure the dismissal was fair, says Mazzarella.
“It shows for employers if you have these policies, even if they were done some time ago, they can still be relied on,” she says.
However, the Fair Work Commission did say the case was complicated by the fact that some staff believed they were authorised to take items from the store.
Mazzarella says small business owners should consider creating clear information for staff about hierarchical structures within the business, so all workers know who has the final say when it comes to workplace policies.
“Perhaps you should be making it clear in policies who has the ultimate say — always directing employees back to the big boss so that there’s no confusion,” she says.
In broader terms, Mazzarella observes that the legal system treats theft at work very seriously, and employers do have protections when it comes to staff taking stock.
“I think the law is clear that theft is serious misconduct, and that is taken very seriously,” she says.
SmartCompany attempted to contact the director of the supermarket but did not receive a response prior to publication. SmartCompany was unable to contact the former worker.
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