An employer unfairly terminated a delivery driver for theft after delaying his termination on the advice of local police.
The delivery driver was employed by a food wholesaler supplying seafood and other items to restaurants. The delivery driver was part of a group of workers who would load extra seafood items into the trucks that they then sold privately.
The scheme started to come undone when one of the workers was found with eight unassigned boxes of tiger prawns in his truck in February, prompting another worker to confess to management what had been occurring. The employer promptly reported the issue to local police who was advised to keep the matter quiet and not take disciplinary actions against the other workers so that the matter could be properly investigated.
As a result, the issue was not raised with the delivery driver until May, when an unrelated matter prompted the employer to take action.
He was subsequently terminated for serious misconduct over the theft.
In considering this matter, the Fair Work Commission (FWC) concluded that the theft provided a valid reason for termination and would have justified summary dismissal, had it occurred when the employer first became aware of the misconduct. Commissioner Cambridge sympathised with the employer and recognised that their delay in addressing the issue was understandable, however, the continuation of the delivery driver employment “meant that the employer could not subsequently summarily dismiss on the basis of the misconduct that the employer was aware of when it permitted the applicant to continue work”.
This is not an unusual outcome, with the FWC having previously concluded that allowing an employee to continue to work despite knowledge of serious misconduct means that any subsequent termination should be provided with notice. In this case the employer was fortunate, with Commissioner Cambridge reducing the compensation to zero based on the severity of the delivery driver’s action and his lack of effort to find new employment.