Lawyer, Katie Kossian, looks at a recent case that highlights the importance of dealing with serious misconduct expeditiously.
The importance of putting allegations to an employee properly when serious misconduct is detected was highlighted by the recent Fair Work Australia decision in Somveer Narwal v Aldi Foods Pty Ltd FWA 2056, where Commissioner Cambridge determined that an employee who had clearly breached the employer’s company policy had been unfairly dismissed, and awarded 12 weeks remuneration.
Mr Narwal had worked for the Aldi retail supermarket chain for four years, initially as an Assistant Manager, and following a promotion in March 2009, as a Store Manager.
At the time of his dismissal, Mr Narwal was working as a relief manager at the Aldi store in Guildford.
Following the end of his shift on a Friday afternoon, Mr Narwal took $41.52 worth of groceries to the check out. Once the items were scanned through, Mr Narwal realised he did not have his wallet and instructed the cashier to suspend the sale, print a docket and affix it to the computer in the store office to remind him to pay for the items on Monday. Mr Narwal then left the store with the groceries.
Over the weekend, the store’s Assistant Manager became aware that Mr Narwal suspended the sale and left the store without paying for the groceries. A meeting was held between the Assistant Manager and the Area Manager on the Saturday morning. The Area Manager then telephoned the Store Operations Director to advise him of what had happened. The Area Manager obtained a duplicate copy of the suspended sale receipt and CCTV footage of Mr Narwal taking the goods from the store. Importantly, over the course of the weekend the sales docket that was affixed to the office computer went missing.
Despite this management meeting, no one had contacted Mr Narwal, and it was decided that Mr Narwal could return to work on Monday to see whether he would pay for the goods.
Mr Narwal didn’t pay on the Monday, and management allowed him to work another two days to see whether he would pay for the groceries.
On the Wednesday morning, Mr Narwal was approached by the Area Manager, who questioned him about the suspended sale. Mr Narwal admitted to taking the items, explained that he had forgotten to pay for them, and paid for them. He was then advised that he was suspended from duty.
On Thursday Mr Narwal had a meeting with the Operations Manager, who notified Mr Narwal that his conduct amounted to theft. At that meeting, Mr Narwal acknowledged that he had made a serious mistake and said that he had always intended to pay for the goods and failed to because the suspended sale docket had not be there to remind him. Mr Narwal was then told that he was being summarily dismissed and was handed an employment separation certificate which cited the reason for dismissal as dishonesty/theft.
Mr Narwal lodged an unfair dismissal claim.
In making his determination, Commissioner Cambridge accepted that Mr Narwal had acted in clear breach of company policy by failing to pay for the goods, but rejected the claim that he had acted dishonestly. He determined that Aldi had failed to establish that Mr Narwal had engaged in theft and was critical of the way in which management handled the investigation. The Commissioner held that by not immediately addressing the failure to pay for the goods when they became aware of it, Aldi effectively condoned the conduct by allowing Mr Narwal to continue working for three days. As such, Aldi could not rely on that misconduct as a valid reason for dismissing Mr Narwal.
Lessons for Employers
While it may be argued (as it was in this case) that the employer was simply giving the employee an opportunity to act honestly and pay for the goods that were taken, and only made a decision about the conduct after the employee failed to pay, this case illustrates the risk that, by allowing an employee suspected of serious misconduct to continue working the employer might be regarded as condoning the misconduct.