We frequently receive calls from employers looking to instantly dismiss (or indeed after having just enacted an instant dismissal) an employee they claim to have “caught red handed”.  

On its face, the evidence can seem overwhelming. The employer might see no compelling reason to delay the matter of an instant dismissal any further in order to discuss it with the employee. What’s more, they might feel there is nothing to be gained from conducting a further investigation or following a disciplinary process in circumstances where the alleged wrongdoing seems so clear and intolerable.

However, while there may well be a valid reason for termination, an employer must be in a position to demonstrate a dismissal was not unfair – that is, harsh, unjust or unreasonable for the purpose of the Fair Work Act. In order to do so, a proper investigation should be undertaken to establish the substantive grounds for termination and procedural fairness must be afforded to the employee.

(Want to know how to conduct a proper workplace investigation? Read our guide.)

A recent case involving the Salvation Army

In a recent case before the Fair Work Commission, an assistant store manager who worked for the Salvation Army Property Trust (SAPT) for 11 years had her employment terminated for serious misconduct. The reason for her instant dismissal? She was alleged to have taken $200 from a customer that she did not put through the cash register.

SAPT submitted inferences should be drawn based on CCTV footage showing Walker having cash in her hands after she had been in the production room with a customer. It further claimed the assistant’s credibility was undermined when she changed her story (to admit that she had real money as opposed to an “Australian banknote notepad”) after being shown the CCTV footage at the hearing.

In reviewing the evidence, the Senior Deputy President (SDP) found that, at its worst, the CCTV evidence showed Walker folding a single 50 dollar note (as opposed to four 50 dollars notes as alleged by SAPT) in a white piece of paper and putting it in her apron. There was nothing to suggest the $50 note came from the customer and she had a plausible alternative explanation. Accordingly, the SDP held:

“given the lack of direct evidence, I am being asked by [SAPT], in effect, to rely on ‘indirect inferences’ such as the fact that the applicant had money in her hands at some point around the time she was serving [the customer] and that she apparently said during her interview that the cash registers were busy. By contrast [the assistant] has consistently denied ever receiving any money from [the customer], both during the investigation and in her evidence before the Commission. She gave plausible explanations… It follows that she was not guilty of misconduct and [SAPT] had no valid reason for her dismissal.”

The ruling: valid ground for dismissal?

Further, as a large employer, the SDP held SAPT was expected to adopt rigorous procedures and was not satisfied it did so stating:

“At the very least it would have been preferable if the applicant had been given a better opportunity to examine the CCTV footage and give her own account of what occurred, prior to her dismissal. The alacrity with which the respondent accepted [the customer’s] version of events over that of a long standing employee is certainly surprising.”

On this basis, Walker was awarded $22,404.50 representing the maximum compensation cap based of her annual salary of $44,809 divided by two.

This case represents a salient reminder to employers of the dangers of instant dismissal and consequences of failing to conduct thorough investigations and follow rigorous procedures.

This content is general commentary and opinion of the writer provided for information only.  It is not intended to be comprehensive and it does constitute, nor should it be relied upon, as legal advice. Readers should obtain specific advice relating to their particular circumstances.