The Fair Work Commission has found that an employer was entitled to sack an employee who was allegedly planning to steal company property, rather than waiting for the theft to actually occur.

The employee worked at a coal mine. During the course of a work day, the employee did a number of things that led the employer to believe that he was intending to steal company property. The employee had removed some cables from the main area of the mine, and hid them in an area usually only used for rubbish. The employee had also parked his ute in the same area, and there were items of company property loaded in the ute’s tray. Also, instead of returning to his ute along the lit pathway, the employee returned via a steep embankment, seemingly trying to remain “unobserved”. After being questioned about his conduct, the employee returned the cable and other items. Following these events, the employer conducted an internal investigation and concluded that the employee was intending to steal the items. The employee was dismissed.

The Commission agreed with the employer’s conclusion that the employee’s explanations and denial of any intent to steal the items were “unreliable”. The Commissioner stated he was “compelled to a conclusion” that the employee had the “intention of stealing” the items, and this constituted a valid reason for the employee’s dismissal. Further, the disciplinary process was conducted in an appropriate and fair manner. The Commissioner stressed that:

…dishonesty in the form of theft or planned theft, is well recognised as a most serious form of misconduct. In all the circumstances of the case I am satisfied that, weighing the misconduct against the mitigating factors, the [employer] acted reasonably and that the dismissal of [the employee] was not harsh, unjust or unreasonable.

 ​Key points for employers: 

  • Where an employer reasonably suspects that an employee intends to engage in serious misconduct, such as theft, it is reasonable for the employer to dismiss the employee on the basis of that intent, prior to the conduct actually occurring. 
  • If an employer wishes to dismiss an employee in such circumstances, the employer must ensure that it undertakes robust investigations and has reasonable grounds to substantiate its conclusion about the employee’s intention.