The film before the Fair Work Commission was definitely not Academy Award worthy. CCTV footage of the employee allegedly stealing a laptop computer was described as flimsy at best and perhaps tampered with at worst. While the camera definitely showed the employee with the property, an inquiry ruled that the evidence was insufficient to fire him.
The employee, a delivery driver, was terminated from his position in March 2015 after an investigation by the company found he had stolen a box containing the laptop computer, which was meant to be delivered to a major appliance store.
The box was one of two boxes on the same consignment note destined for the Harvey Norman store in Townsville. The two boxes travelled from Melbourne to Brisbane, to Proserpine and then to Townsville.
The termination was based on CCTV footage from the Townsville depot which allegedly shows the delivery driver handling the package in a manner that suggested he was trying to obscure it from vision of the camera. DFE alleged that the package was moved around the depot area suspiciously and that it could be seen being loaded into the truck at the head end. The package subsequently never made it to the customer on delivery.
Based on the conclusions drawn from the CCTV, two disciplinary meetings were held and the allegations put to the employee.
The company didn’t show him the CCTV footage at either of these meetings, despite his request to view it.
DFE claimed that they were intending to play the footage at a third meeting. However, this meeting never took place; the employee was unable to attend as he was feeling anxious and stressed. Despite providing DFE with a medical certificate, he was still presented with a letter advising him of his summary dismissal.
There were two issues with this termination:
1. The evidence and investigation process
When assessing the CCTV footage in the hearing, Commissioner Chris Simpson accepted submissions made by the driver on the unreliability of the footage in proving that he stole the box in question.
One witness called to the hearing was the customer and owner of the package, who identified the missing box in the CCTV footage as a different box to that which was identified by DFE’s investigation. It was determined that the markings relied upon by DFE management for the identification of the box were blurred and unreliable.
In regards to the suspicious mannerisms of the driver, Commissioner Simpson stated that these conclusions were merely speculation and failed to establish that the employee stole the box. Commissioner Simpson accepted that there was no clear evidence to prove that the driver stole the missing box. He said the evidence was clear that the driver consistently denied the allegation made against him.
Commissioner Simpson agreed that the evidence was “flimsy” and that perhaps there were missing pieces of footage that DFE may have been in possession of which would have worked further in favour of the accused.
2. The termination process
Commissioner Simpson acknowledged that by the end of the second meeting on 12 March, DFE management had already formed the view that the driver had stolen the box. And, although they had invited him to attend a third meeting the next day, he was not informed that the CCTV footage would be played.
This final meeting never went ahead after DFE received the medical certificate. However, it was stated to the Commission by DFE that this did not change the decision to terminate his employment and that DFE believed this was a tactic to avoid further discussion of the matter.
The employee was sent a letter advising him of summary dismissal due to theft on 13 March.
The driver told the commission the only fair way the investigation could have been conducted would have been for DFE to play the CCTV footage to him. He believed that DFE management had already drawn conclusions on the allegations and processed his termination without allowing him to provide a response.
Commissioner Simpson agreed and stated that the fact that he “was not afforded the opportunity to see the CCTV footage and to make a response before he was terminated was denial of procedural fairness.“
Commissioner Simpson concluded that the dismissal was unjust and unreasonable and awarded $25,468.13 in damages to the employee.
CCIQ Viewpoint
If you are going to rely on evidence such as CCTV footage in a termination, it is important that you have followed a fair and thorough investigation process. Ensure that all parties involved are provided with the opportunity to view the evidence, and provide a response or any counter evidence that may be relevant.
Then, if do you find that you have grounds for termination, call CCIQ’s Employer Assistance team to be certain that you know the correct process to follow, to ensure that you offer your employee procedural fairness.
Phone CCIQ on 1300 731 988 or email advice@cciq.com.au
Thursday 18 February, 2016 | By: Anastasia Caris |
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