Making a finding of misconduct where there is no direct evidence

In a recent decision, the Fair Work Commission gave useful guidance on how to sensibly conduct a workplace investigation when there is no direct evidence of misconduct.

The case involved a claim by two Virgin baggage handlers who were dismissed after Virgin determined that they had stolen two packets of cigarettes (worth about $50) from a cargo container.

Significantly, there was no direct evidence of the theft either from witnesses or from CCTV. 

This "gap" in the evidentiary trail was the substance of the case put by the employees. They argued that, in the absence of direct evidence and in light of their own denials of the theft, it could not be concluded that they were guilty.

Although the employer had no direct evidence of the theft, there was a good deal of circumstantial evidence to support the conclusion that the theft had occurred and that the dismissed employees were the thieves. In particular, there was evidence from other employees that one of the dismissed employees had behaved in a way that was consistent with his guilt. In addition, the employer had spent days investigating whether the theft could have occurred at any other point in the cargo's journey (including spending hours reviewing CCTV footage of the cargo) and ruled out any alternative explanation for the disappearance of the missing cigarettes.

The Commission observed that it was for Virgin to prove that the cigarettes had been stolen and that the dismissed employees were guilty of the theft. Further, given the serious nature of the allegations against the employees, the Briginshaw principle meant there was a higher burden on the employer to prove the allegation to the Commission's satisfaction than might otherwise be the case.

However, the Commission held that -

"Virgin’s evidentiary case provided a sound, logical and rational foundation for the Commission, to be satisfied that the applicant’s denials of involvement in the theft, cannot be accepted."

The case highlights the type of careful workplace investigation employers should undertake if allegations of serious misconduct are made against employees. And it also demonstrates that carefully collated and analysed evidence can sustain a finding of serious misconduct even where direct evidence is absent.

A final observation from the Commission concerned the fact that the dismissals stemmed from the theft of goods worth only $50 and where - in relation to at least one of the dismissed employees - the theft might have been put down to a single stupid decision. The Commission observed - 

"Theft is theft - no matter the value. However, had the applicants not been untruthful during their investigation and in their evidence before the Commission … I might have put their conduct … down to a stupid and very bad error of judgment. By not admitting their conduct, I am reminded that it is often not the conduct itself that determines one’s fate, but the subsequent attempt at cover-up. Nevertheless, regrettably, the applicants have ‘made their bed and must now lie in it’. I am satisfied the allegations against the applicants have been proven".

You can find the full decision here.