Call free on
1300 575 394
Get a quote

Boner canned over Coke theft

An ‘impeccable’ employee has been awarded almost $30,000 for unfair dismissal.
Return to previous page
Boner canned over Coke theft

Boner canned over Coke theft

15 May 2020

An ‘impeccable’ employee who was sacked for stealing a can of coke has been awarded almost $30,000 for unfair dismissal.

The Fair Work Commission found the worker’s immediate expression of remorse, coupled with his long and unblemished work history, made the dismissal harsh and unfair.


Behaviour ‘out of character’

The meatworks boner was dismissed by Cannon Hill Services (trading as Australian Country Choice) after almost a decade of service.

The Commission heard that a security camera recorded the worker stealing a can of coke from an open vending machine located on site.

When confronted with the evidence, the worker agreed it was him and said he didn’t know why he did it as it was “out of character”.

In a show cause letter, the employer said the worker’s actions constituted serious misconduct under its enterprise agreement and breached the company’s code of conduct.

In response, the worker explained that he “felt it was okay” at the time to take the drink because onsite vending machines had short-changed him in the past. He estimated he’d lost at least $10, and two co-workers gave evidence they had also lost money.

However, the boner said he now realised it was “wrong for me to take the drink. The way I rationalised the decision… was a mistake. I should have resolved the issue with my prior purchases at the time they happened. I will never make such a mistake again.

“I am filled with remorse and would like to offer my sincere apology for any damage that I have caused, and I would like to offer to pay for the drink I took.”

A further interview was held, but the company decided the boner’s conduct was of “such a serious nature” that it warranted dismissal.


Arguments

The Australasian Meat Industry Employees Union submitted that the decision to dismiss was harsh due to the following factors:
  • The worker’s length of service with CHS of approximately nine and a half years
  • The previously impeccable disciplinary record of the worker
  • The relatively trivial value of the item taken
  • The taking of the property was out of character
  • The worker readily admitted what he had done, and did not attempt to mislead CHS about his culpability
  • The seriousness of the conduct was mitigated to some extent by the fact the worker had lost a significant amount of money to the vending machine, in excess of the value of the property taken, giving rise to a view that he was not really depriving the vending machine owner of money to which they were entitled, and
  • The termination meant the worker was not paid any amount of pro-rata long service leave, despite the length of his service with CHS.

CHS argued that stealing the drink was considered serious misconduct and breached the company’s policies and trust.

It noted that another employee who took something from the vending machine was also dismissed.


Decision

Commissioner Simpson found it was relevant that the boner had an unblemished employment record of almost 10 years. It was also significant that he was dismissed just prior to being eligible for long service leave.

The Commissioner also agreed with the union’s submission that the decision in Qantas Airways Limited vs David Dawson was distinguishable from the facts in this case because the boner was honest about his conduct when confronted with it and showed remorse for it.

“There was no deception or dishonesty on the part of Mr J once confronted with his actions in taking the can of Coke. Mr J owned up to taking a can of Coke with a likely value of $2 or $3 in circumstances where he had lost many times that amount to the same vending machines over a period of time without recompense.

“There are enough mitigating circumstances, including his immediate expression of remorse, and his long and unblemished history with CHS, to conclude that Mr J’s dismissal was harsh and, on that basis, unfair.

“Mr J engaged in one instance of misconduct in nearly 10 years of otherwise unblemished service which in its proper context was a one off opportunistic and momentary lapse of judgement in taking the can of Coke without paying for it. It was out of character for him and occurred in circumstances where it was the last working day before plant shut down, the vending machine door was left open and he had on multiple previous occasions paid money for an item from one of the vending machines without obtaining that item because of some operational fault in the vending machines.”

In determining compensation, the Commissioner was satisfied the worker would have remained in employment for at least another six months (which equated to $42,900).

The amount was reduced to $28,280 after a deduction of 20% for the misconduct and taking into account monies earned since dismissal.

The boner was also entitled to payment of pro rata long service.


Read the judgment

Adam Jolley v Cannon Hill Services Pty Ltd (U2019/14276)[2020] FWC 2404

Sign up to get the latest news and updates

Like what you’re hearing?

With plans available from just $58 per week, now is an excellent time to join Workplace Assured.

PROTECTION
REASSURANCE
GUIDANCE