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IR Update: Employer’s decision to sack for serious misconduct based on “flimsy” evidence

February 15, 2016

We often receive calls from members who claim to have footage of employees engaged in misconduct. This case is a timely reminder that in order to rely on video footage it must be conclusive. It is simply not enough to have something on camera that is unclear.

In Mulhall v Direct Freight (Qld) Pty Ltd [2016] FWC 58 the FWC held that an employer’s decision to sack a truck driver for serious misconduct was based on “flimsy” evidence and ordered the employer to pay over $25,000 in compensation to the driver.

The truck driver was alleged to have stolen a package containing a laptop computer which should have been delivered to Harvey Norman in March 2015.

The employer relied upon CCTV footage to come to the conclusion that the driver stole the package. However, despite the driver’s requests to view the footage, it was not shown to him at either disciplinary meeting.

The driver submitted that the only fair way for the employer to conduct its investigation was to have played him the footage. The employer stated that they intended to play the footage at the next meeting but the driver did not attend.

The driver claimed he was unable to attend the next meeting due to feelings of anxiety and stress for which he provided a medical certificate. However, despite this, the employer sent a letter to the driver advising him of his dismissal.

Commissioner Simpson accepted the driver’s submission that the evidence was “flimsy” and found that the employer had been unable to discharge its onus to satisfy the Commission on the balance of probability that the driver had actually engaged in the conduct alleged.

In the two videos relied upon by the employer, two different boxes were identified as the stolen package by separate witnesses. There was also “considerable distance between the position of the camera and the [driver]” in one video which undermined the reliability of the employer’s claims as to the manner in which the driver behaved. There was therefore no clear evidence to prove that the driver stole the package.

It was also found that the driver was denied procedural fairness as he was not afforded the opportunity to view the footage upon which the employer relied and make a response before he was terminated.

Commissioner Simpson held the dismissal to be unjust and unreasonable and found that a payment for compensation was reasonable in all of the circumstances. He ordered the employer to pay the truck driver $25,468.13 gross.

This case highlights the importance of reliable evidence and procedural fairness. If you have any queries in relation to these issues, give us a call on 1800 RETAIL (738 245) or email us.

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