Allegations of theft and Briginshaw

The decision in Hatch v WesTrac Pty Ltd provides a valuable example of the importance of the Briginshaw standard in a workplace investigation.

Mr Hatch worked a Field Services Technician with WesTrac.

Part of his role involved managing the “return to store” bench at the Bengala coal mine.

From time to time, workers at the mine will replace worn or broken equipment – when that happens the used parts are taken back to the return to store bench.

One day, four gas struts were returned as a bundle to the return to store bench.

Mr Hatch took the struts to his ute – which was parked at the mine.

He then returned two of the struts and left two in his ute.

At this point he was confronted by Mr Matthews - another contractor at the mine.
Mr Matthews noticed that only two struts had been returned. He asked Mr Hatch what had happened to the other two struts.

Mr Hatch said he had left the two structs in his ute because he wanted to compare them to the struts that were fitted to the ute. He said he wanted to check if the two parts were interchangeable and – if they were – he intended to look into buying two struts of the same model as the ones used in the mine because he could see they were better quality.

Later in the day, Mr Hatch returned the final two struts.

After conducting a workplace investigation, WesTrac dismissed Mr Hatch for attempted theft of the two struts.

WesTrac’s position was that Mr Hatch had intended to steal the struts and the theft would have occurred if Mr Matthews had not intervened.

Mr Hatch said that his conduct was unusual but innocent. He said he had problems with the struts on his ute for some years and had replaced the standard struts several times. In support of his argument, he produced an invoice from Amazon which verified that he had purchased replacement struts for his ute shortly before the day of the incident. This was consistent with his account of having had problems with the struts on his ute previously.

Deputy President Saunders stated,

“I accept that it is possible that Mr Hatch intended to steal the struts on 11 April 2020. The troubling aspects of the evidence … support such a conclusion. However, having carefully observed and listened to Mr Hatch give evidence in these proceedings, I have not reached a state of satisfaction or an actual persuasion that Mr Hatch had an intention to steal the struts.”

Accordingly, the Fair Work Commission found that there was no valid reason for the dismissal and awarded compensation (but did not order reinstatement).

The case is an excellent example of how Briginshaw operates in practice.

In this case, the evidence in support of the alleged attempted theft was limited. To reach the conclusion that Mr Hatch was trying to steal the struts, it was necessary to engage in inference and speculation about conduct that was (as the Commission accepted) “troubling” in some respects. That is not sufficient to meet the Briginshaw standard.