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Botched investigation renders dismissal unfair

The employee was dismissed due to allegedly intending to steal from a customer.
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Botched investigation renders dismissal unfair

Botched investigation renders dismissal unfair

5 November 2020

By Mike Toten

An employee dismissed because he allegedly intended to steal a customer’s property has successfully claimed unfair dismissal after a tribunal found the employer had botched its investigation of the matter.

The employer had failed to properly interview two witnesses who had provided conflicting versions of what had happened. As a result, misconduct was not proven. However, because of the employee’s failure to follow appropriate procedures this time and his tainted past history, reinstatement was not awarded.

Facts of case

The employee was a field services technician employed by a large retailer of mining equipment. The employee was accused of either stealing or planning to steal some struts that belonged to a customer whose work site he was attending, and placing them in his work ute.

When an employee of the customer asked him if he was stealing the struts, he denied it and claimed he was comparing them to other struts of his own that were in the ute and intended for use on his family car. There had been two witnesses to the incident, who provided conflicting accounts of what happened. They were not questioned closely and no serious attempt was made to investigate the differences and establish what had really happened. Neither gave evidence in the case, although they had both given written statements to the employer. The employer did not question them beyond that, although their statements were inconsistent with each other. Nor was the dismissed employee given an opportunity to respond to the contents of the statements. There was also a suggestion of previous animosity between the dismissed employee and one of the witnesses.

The employee had placed two of the four struts in his ute and returned the other two to the storage area. He did not seek permission to take them to his ute, nor did he provide any explanation when returning them.

The regional services manager made the decision to dismiss the employee. However, he was not directly involved in the investigation process and relied on a recommendation by the field services manager, after the latter told him that the employee had not given him a satisfactory explanation for his actions. In fact, the employee had told one of the witnesses that he had no intention of stealing the struts and was comparing them to his own ones, as per above. He returned the employer’s struts to their storage area about 15 minutes later.

The employer argued that the employee’s conduct had undermined its trust and confidence in him, and caused the customer to refuse to allow him back on its work site. The employer also claimed that his past employment history included several breaches, some of which resulted in other customers’ requests that he not visit them (it produced a list in evidence).

The FWC noted that the employee had failed to notify anyone that he was taking the struts to his ute or seek permission to do so. That error contributed to the alleged loss of trust between the parties.


The FWC found dismissal to be unfair, because the employer had not investigated the matter thoroughly enough to establish that the employee intended to steal the struts. The decision-maker who dismissed him relied on incomplete and incorrect information to do so. Therefore, the employer did not establish a valid reason for dismissal.

There were various “holes” in the employee’s evidence but overall it was plausible enough not to prove that he stole or intended to steal the struts. Dismissal had caused severe financial hardship to the employee. However, because his conduct had contributed to a loss of trust between the parties, reinstatement was impracticable. Instead, he was awarded compensation of $28,313.

This amount reflected the FWC’s estimate that, given that several customers had banned him from their sites, his employment would only have lasted about another four months.

The bottom line: This employer’s case failed because of errors in its process of investigating the allegations made against the employee. When there are inconsistencies in the evidence provided by witnesses, the employer should investigate the reasons for them thoroughly in order to establish the truth. This may require the employer to reinterview them, point out the differences to them and request further clarification, or possibly seek other witnesses. The employee should also have an opportunity to respond to the contents of witness statements before any decision to dismiss is made.

Also in this case, the FWC commented that the employer failed to follow its own procedures set out for dealing with allegations of misconduct. Because of that, it failed to establish that there was a valid reason to dismiss the employee.

Read the judgment

Hatch v WesTrac Pty Ltd [2020] FWC 5729, 27 October 2020

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