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Employer ordered to pay $29k after false serious misconduct allegations

The Fair Work Commission has awarded an employee $29,070 in compensation after it found that the employer had no evidence of the employee’s alleged serious misconduct before proceeding to dismiss the employee.

The employee had worked for the employer for nearly three and a half years at the time of her dismissal. The employer commenced an investigation into the employee after a colleague had reported that the employee had been printing out and taking home sales reports and acting “secretly”.  The substance of the allegations was that she had “engaged in corporate theft and fraud involving cash, credit card, paypal and direct deposit”.

During the dismissal meeting, the employer demanded that the employee admit to the conduct or else he would dismiss her and report her to the police. When the employee refused to admit to the allegations, the employer carried out his threat and terminated her and filed a police report.

In terms of the police report, the employee gave evidence that she had spoken to the police and they had confirmed that there was no investigation into her alleged conduct – this was despite the employer’s insistence that the police were awaiting more information from him.

Deputy President Asbury found that there no evidence to support the employer’s allegations. In particular, she found that the downturn in sales could be attributable to the economic climate at the time as opposed to the employee’s wrongdoing.  She found that that dismissal of the employee was inconsistent with the Small Business Fair Dismissal Code and that the employee had no reasonable basis for the serious misconduct allegations.

Implications for employers:  It should go without saying, but if an employer wishes to take action against an employee for serious misconduct, it should ensure that it has reasonable evidence to support such a finding.  Without such evidence, a termination will generally always be unfair.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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