Logistics manager dismissed after store closed early three times on Sundays

The Fair Work Commission (FWC) recently dealt with an unfair dismissal application from a part-time logistics manager who argued he was summarily dismissed after leaving work early on three occasions on Sundays.

The worker had been employed for nearly two years when he was dismissed in May 2025 following customer complaints that the store had been closed early.

The employer, a small business operating a saddlery and fodder store with a post office, contended the dismissal complied with the Small Business Fair Dismissal Code.

The worker did not dispute that he left early on three occasions when he was the only employee at the store, but said the incidents were isolated.

He explained that two occasions were due to illness caused by forklift fumes, and one was to take his daughter on a train ride because she was going through a difficult time.

The employer argued that the worker left early without notification and received payment for hours not worked, which had the potential to impact the reputation of the store and lose customers.

Nearly two years of part-time employment

The worker had been employed by the employer since 8 August 2023.

At the time of the dismissal, the worker was employed part-time as a logistics manager, working Tuesday 9:00 am to 5:30 pm, Thursday 9:00 am to 5:30 pm, Friday 9:00 am to 5:30 pm, and Sunday 10:00 am to 3:00 pm.

On weekdays, the worker spent time out of the store doing deliveries, but on Sundays from around March 2025, he was the sole employee at the store. The worker was paid an hourly rate for the hours he worked.

At the time of the dismissal on 27 May 2025, the employer had no more than seven employees.

The FWC found the employer was a small business as defined by the Fair Work Act.

The FWC noted that section 396 of the Act requires the Commission to determine whether the dismissal was consistent with the Small Business Fair Dismissal Code before considering the merits of the application.

The Small Business Fair Dismissal Code states: "It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures."

Customer complaints triggered investigation

On Monday, 26 May 2025, several customers advised the employer's director that they had been unable to access the shop the day prior, Sunday 25 May 2025, as it had been closed early.

Upon being told by customers that the store had been closed nearly an hour early and several customers "met up at one of our competition", the director checked the store's security footage.

No footage was provided to the FWC or the worker, but the director gave evidence that the footage showed the worker leaving work prior to his finish time on three separate Sundays in the five weeks prior to 26 May 2025.

The director said that on two occasions, the worker was seen in the footage leaving 30 minutes early, and on the last occasion, he left 45 minutes early. Further investigations were undertaken by the director, including checking the sales history on Sundays to see if there were sales made after 2:30 pm on other occasions.

The director told the FWC that prior to confronting the worker about leaving early on Tuesday, 27 May 2025, he checked the Fair Work Commission's website for information "to see where I stood" and "followed those steps" set out in the Small Business Fair Dismissal Checklist.

Worker's explanations examined

The worker did not dispute that he left early on three occasions on a Sunday when he was the only employee at the store, but said "it was literally isolated to these three incidents".

On two occasions, the worker said, the illness was due to the fumes of the forklift, and on one occasion, on 25 May 2025, he was to take his daughter on a train ride because she was going through a difficult time.

The worker contended that on the first two occasions, he left 10 to 15 minutes early, and on the final occasion, around 30 minutes prior to the store's closing time.

The worker said he considered this an "insignificant amount of time". His evidence was that there were occasions that he "did deliveries on my way home" without seeking payment and thought "it just kind of balanced out".

The Commissioner observed inconsistencies in the worker's evidence regarding the reasons provided for leaving his shifts early on the three occasions in question.

The worker's explanation for why he left early only on Sundays was that the fumes from the forklift burning oil made him feel unwell, but also stated, "because it was quiet, during the week there is no need to leave early because I'm flat out during the week". Additionally, his evidence was that he did not operate the forklift.

Evidence treated with caution

The Commissioner stated: "I am unable to accept that the forklift fumes caused him to become unwell on two Sundays when he was the only employee in the store and by his own admission, he did not operate the forklift."

The Commissioner concluded: "As a result of these inconsistencies, I have treated [the worker's] evidence on these points with caution and prefer [the director's] evidence where it directly contradicts [the worker's]."

The Commissioner noted the worker accepted that there were occasions when he left early and did notify the director, demonstrating an understanding that there was an expectation of him to inform the director when leaving early.

The director's concerns with the worker leaving early without notification were that the employer was not given the opportunity to have another employee cover the rest of the shift, allowing the store to remain open for sales.

The Commissioner stated: "This had the potential and actual effect of customers going to a competitor, impacting the reputation of the store and losing customers due to unreliability."

The director asserted that the worker's conduct amounted to fraud as a result of obtaining the benefit of payment for hours not worked.

The Commissioner stated: "It is not necessary for me to determine whether the conduct amounts to fraud, simply whether it was sufficiently serious to justify immediate dismissal."

Conversation about conduct examined

The parties had conflicting recollections of the conversation that took place when the director questioned the worker about leaving early.

The Commissioner stated: "I found [the worker's] recollection of the conversation on 27 May 2025 didn't follow a coherent sequence of events. Where his evidence directly conflicts with [the director], I prefer the evidence of [the director] for this reason, as well as finding [the director's] evidence to be more consistent."

The director told the FWC that he spoke to the worker on 27 May 2025 so the worker could "tell me what was going on, why he had a valid reason" and give "him a chance to talk to me".

In doing so, the director approached the worker when he presented for work on Tuesday, 27 May 2025.

The Commissioner stated: "A preferable way to raise the issue with [the worker] would have been to put him on notice of the concerns regarding his conduct and to provide him an opportunity to give considered responses. However, I accept that the size of [the employer's] business and resources likely had an impact on that process."

When the worker was confronted about leaving early on Sundays, the Commissioner accepted the director's evidence that the worker denied leaving early on the two occasions prior to 25 May 2025.

The director stated: "...he denied the other two, even though I said they had cameras that I could, you know, prove it, and he denied it a second time."

The director described the worker's response as dishonest and said, "If he is going to lie to me about it too, then how can I trust him? How can I try and work with him? That was it, that was the final straw."

Reasonable investigation found

When asked to return the keys to the store, the worker handed them to the director and left, understanding that he had been dismissed.

The Commissioner stated: "It is clear from [the director's] evidence that the combination of [the worker] leaving early without notifying him, this only occurring on a day when he was the sole employee at the store, the denial of leaving early and the impact that these actions had on [the employer] resulted in [the director] forming the belief that [the worker's] conduct was serious enough to justify summary dismissal."

The Commissioner found: "I find this to be a reasonable belief having considered the evidence before me."

The FWC examined whether the employer complied with the Small Business Fair Dismissal Code.

The test in assessing whether the dismissal complied with the Code is: it must be established by the employer that at the time of the dismissal the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal; that there were reasonable grounds in the mind of the employer to hold that belief; and either at the stage of forming that belief, or prior, the employer carried out a reasonable investigation into the matter.

The Commissioner stated: "Upon notification by customers of the store's early closure, [the employer] undertook an investigation into the conduct of [the worker]. I consider reviewing accessible video footage, checking the sales records and asking [the worker] about the conduct to amount to a reasonable investigation, combined with the complaints received from customers about the store's closure."

Code complied with and application dismissed

The Commissioner found: "The result of that investigation was that [the employer] formed the belief that [the worker] had left early without providing any notification with the intent of concealing it and receiving payment for hours not worked."

The Commissioner stated: "[The employer] held a genuine concern that customers were going to their competitors as a result of [the worker's] actions in closing the store early. [The worker's] lack of communication about leaving early deprived [the employer] of the opportunity to cover the remainder of the shift to allow the store to remain open."

The Commissioner concluded: "It was a reasonable belief held by [the employer] that the conduct engaged in by [the worker] was serious enough to warrant immediate dismissal, in the context of the specific circumstances in this matter and the definitions in both the Code and the Regulations."

The Commissioner stated: "Accordingly, I am satisfied that [the employer], in dismissing [the worker], complied with the Code. Having found that the Code has been complied with, it is not necessary to determine whether the requirements set out in s 387 have been met."

The decision confirmed that where a small business employer conducts a reasonable investigation, forms a genuine belief that conduct is sufficiently serious, and has reasonable grounds for that belief, the dismissal can comply with the Small Business Fair Dismissal Code even where procedural aspects could have been improved.