Updated: Motorcycle Shop Employee Sacked Over Missing $50 Wins Unfair Dismissal Claim
A workshop manager/service manager at a Penrith motor cycle shop was unfairly dismissed by his employer on allegations of theft, the Fair Work Commission (FWC) has found.
Background
The Applicant in the matter had been employed by the Respondent employer since 2012. He was dismissed on 3 September 2018 after the employer determined he’d stolen $50 in cash.
On 30 August 2018 the shop’s electronic invoicing and job card system wasn’t working. The Applicant was therefore required to accept $250 cash from a customer for a first service on a Honda motorcycle and fill out a job card manually. The cash was later placed in the drawer of an office desk.
When the electronic invoicing system became operative again on 31 August, the Applicant entered the job into the system and went to retrieve the cash from the drawer, he could only find $200. He then entered the job card for $200 in the system. The Applicant acknowledged that entering the job for $200 in the system was wrong but maintained he did not steal from his employer.
The oral evidence given by the Applicant in the Commission varied from his written evidence. In his oral evidence, he said on Monday morning, 3 September, he and a colleague found the missing $50 in the drawer. In his written evidence, he claimed that he’d arrived for work on the Monday morning and put his wallet and keys in the drawer when he noticed the $50 at the back of the drawer.
The Applicant was dismissed from the employment on 3 September, with his employer telling him the business did not tolerate theft.
What the FWC found
Deputy President Bull of the FWC found the Applicant’s conduct in completing the job card and invoice for $200 when $250 had been received from the customer was clearly incorrect and a departure from normal procedures. The Deputy President said that conduct did not, however, amount to a valid reason for the Applicant’s summary dismissal.
Turning to allegation of theft, the Deputy President described the Applicant’s explanation of finding the $50 in the office drawer on the Monday morning as “far from convincing”. He went on to say that:
“The allegation of theft resulting in termination of an employee is a serious matter and should not occur without an employee being given a full opportunity to respond to the allegation. This did not occur.”
Despite the Commission’s concerns regarding the manner in which the Applicant gave his evidence, on the balance of probabilities and having regard to the seriousness of the allegation, the Commission was not able to be satisfied that the Applicant stole the $50. Therefore, a valid reason for the dismissal did not exist. The Commission also found the Applicant was not given an opportunity to respond to the allegation, with the employer having decided to dismiss him before speaking with him about the $50.
Bognar v Western Motorcycles Pty Limited [2019] FWC 420
Update: FWC determines remedy for Applicant
In a Decision issued on 15 March 2019, Deputy President Bull ordered the Respondent pay the Applicant $9,735.60 plus superannuation for his unfair dismissal. The figure represents 9 weeks’ wages, discounted by 25% to reflect the misconduct on the part of the Applicant.