Worker argues investigation process 'unlawful'
The Fair Work Commission (FWC) recently dealt with a case involving a worker who argued she was dismissed from work following an alleged theft incident.
In its defence, the employer objected to the worker’s application and contended that the worker resigned from her employment.
‘Theft’ incident
Prior to the case, the worker was employed as a shift supervisor at the store in Wellard, Western Australia.
On 10 February 2023, the employer was notified that there had been suspicious variances in the cash balances of banking envelopes.
“As these variances were not consistent with ordinary variances and were occurring in envelopes that had already been reconciled twice, [the employer] commenced an investigation,” the case noted.
The employer reviewed the CCTV footage of the office where cash was stored and counted to determine the reasons for the variation that was identified on 21 February 2023.
The employer further viewed the CCTV footage for 14 February 2023 to try to find the cause of a further variance. After examining both footages, the employer formed the view that the worker was potentially the cause of both alterations.
Consequently, on 27 February 2023, the worker was advised that she was being suspended with pay pending the outcome of the investigation into the alleged theft of funds.
The following day, the worker also attended a meeting with the employer to discuss the allegations against her, which the worker denied.
Later that day, the worker was sent a record through email entitled “record of interview” to review and sign. The worker advised the employer that the process had upset her and that she would not sign the record.
Ultimately, on 2 March 2023, the worker sent an email to the company which advised that she was resigning from her employment.
The employer argued that based on the facts of the case, the worker clearly resigned from her employment. Hence, no dismissal occurred.
Meanwhile, aside from denying that she was engaged in the alleged theft of money, the worker contended that the actions of her employer were unlawful and discriminatory.
She argued that had she been shown the footage which allegedly showed her guilt of the incident, then she could have presented a better defence of herself.
Commission’s decision
After examining the case, the FWC dismissed the worker’s application as it found that the worker was not terminated from her employment.
While the Commission had concerns about the process engaged in by the employer, it was not persuaded that, viewed as a whole, the investigation would force the worker to resign.
“In and of themselves, the actions of the [employer] appear to be broadly consistent with contemporary expectations about the handling of sensitive investigations into potential misconduct by an employee,” the FWC stated.
“However, I must express a level of disquiet over the failure of the [employer] to show the CCTV footage to the [worker],” it added.
The Commission noted that while it dismissed the worker’s application, the employer should have allowed the worker every chance to defend herself including showing her the footage that the employer alleged indicated her guilt.
