Fair Work Australia has found that an employer had grounds to terminate the employment of a store manager with notice after he took goods home without paying for them, but its failure to act immediately meant it could not later rely on this misconduct as a basis for dismissing him.
On a Friday night the employee suspended the sale of his own groceries after discovering he did not have his wallet. He instructed the cashier to print out a suspended sale docket and attach it to a computer in the store office to remind him to pay when he next returned to work. On the Saturday, the Area Manager, who had been alerted to the suspended sale, decided to allow the employee to return to work on the Monday to see whether he would pay for the goods. When the employee had not done so by Wednesday (possibly having forgotten to pay because the suspended sale docket had been removed by another manager), the Area Manager suspended him and, the following day, summarily dismissed him for “dishonesty/theft”.
FWA held that:
- the employee did not intend to permanently deprive the employer of the value of the goods and, therefore, there was no factual basis to the charge of “dishonesty/theft”;
- nevertheless, the employee had committed misconduct (by suspending the sale and taking the goods without paying for them); and
- while that conduct could have provided a basis for dismissal with notice, in allowing the employee to continue in his employment in full knowledge of the misconduct, the employer had condoned that misconduct and accordingly could not rely on it as a basis for dismissal, let alone summary dismissal.
FWA ordered the employer to pay compensation amounting to 12 weeks’ remuneration.
Narwal v Aldi Foods Pty Ltd  FWA 2056