A meatworker who took a can of coke from a vending machine that was left open has won his unfair dismissal claim after the Fair Work Commission (FWC) found his unblemished service, remorse, and past experience of losing money to the machine meant his summary dismissal was unfair.
The applicant in the matter had been employed at the Cannon Hill abattoir for over 9 years when in November 2019, he was on a break and noticed that the door of a vending machine in a break room was open. He first pushed the door shut but then reopened the door and took a single can of soft drink without paying for it. The incident happened on the last day before a maintenance shut down. On his return to work on 4 December 2019, he was called to the office where he met with HR and the Production Manager. He was subsequently joined by his union representative. When the applicant was asked whether it was him in a photo he was shown, he agreed it was. The applicant was advised that the company had footage of him taking a soft drink from the vending machine and asked why he did it. He responded by saying something like, “I don’t really know why I did it, it’s out of character for me.” He was stood down following the meeting and given a show cause letter requiring a written response by 6 December 2019.
When the applicant replied to the show cause letter, he wrote that his conduct in taking the can of soft drink without paying was out of character for him and something that he taught his children not to do. He went on to explain his reasoning in taking the can was informed by his experience of putting money into the machine only to have it take his money and not dispense the drink. He said he justified the taking of the can to himself as being recompense for all the times that had happened. The applicant said he would never make such a mistake again and that he was filled with remorse. He offered to pay for the can of drink and said he greatly valued the nine and a half years he had spent with the business and wished to continue in his job. A further interview took place between the applicant and the company on 11 December, before he was dismissed by letter the following day. The company relied on the applicant’s alleged breaches of its enterprise agreement and code of conduct in stealing the can of coke in dismissing him without notice.
What the FWC found
Commissioner Simpson of the FWC heard evidence from two colleagues of the applicant about negative experiences with the vending machines at the workplace. One witness told the FWC he had lost $1 and $2 coins on many occasions and estimated he had lost more than $100 on the machines. Another witness recalled similar experiences. The applicant, who was represented by the Australasian Meat Industry Employees Union (AMIEU) before the FWC, argued that his dismissal was unfair having regard for:
- his length of service
- his previously impeccable disciplinary record
- the relatively trivial value of the item taken
- that the conduct was out of character
- his admission of what he had done
The applicant also submitted to the FWC that the seriousness of his conduct was mitigated to some extent by the fact he had lost a significant amount of money to the vending machine.
Commissioner Simpson determined that the applicant’s dismissal was unfair. The Commissioner described the taking of the can of drink as representing one instance of misconduct in the applicant’s nearly 10 years of otherwise unblemished service which, in its proper context, was a one-off opportunistic and momentary lapse of judgement. The Commissioner accepted the conduct was out of character for the applicant and occurred where the door of the machine had been left open and where the applicant had on multiple previous occasions paid money for an item from the vending machines without receiving the item because of some fault in the machines.
The applicant sought compensation for the unfair dismissal and was awarded $28,280 by the FWC. The Commissioner discounted the order of compensation by 20% because of the misconduct of the applicant.