It is common in the Food Industry to have food available at cost for employees. But when does stealing that food amount to serious misconduct? The answer was eloquently dealt with in Adam Jolley v Cannon Hill Services Pty Ltd [2020] FWC 2404 (7 May 2020)
Mr Jolly was an employee at a meat abattoir in QLD. His employment was terminated just before completing 10 years of service, for stealing a can of coke from a vending machine. When the employee was confronted with security footage, he immediately admitted to his mistake and apologised for his “out of character” behaviour. A show cause process was implemented and the employee explained that he had previously lost money to the vending machine due to machine errors, as such he felt justified in taking the can at the time as a recompense. Other employees confirmed losing significant amounts of money to the machine in the hearing.
Commissioner Simpson found that summary dismissal was harsh and unfair. In particular, he distinguished this case from the leading case of Qantas Airways Limited v David Dawson as Mr Jolley displayed honesty and genuine remorse when confronted with his misconduct. Additionally, he had a long and unblemished history with the company, this was his only instance of misconduct in 10 years of service. The misconduct itself was stealing an item of trivial value. The employee was awarded $28,280 in compensation and he was entitled to pro-rata long service leave.
Interestingly, the employer submitted that a uniform approach was required as another employee had been terminated for the same misconduct. This was dismissed by the Union and Commissioner Simpson. Disciplinary measures must only be consistent when employees’ “circumstances are genuinely similar.”
What are the lessons?
- Make sure the punishment fits the crime; and
- Uniform application of punishment sounds good but you must always consider the personal circumstances of the employee. If their personal circumstances are the same then the punishment can be the same.
