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Unfair Dismissal: Stealing ‘wastage’

Unfair Dismissal: Stealing ‘wastage’

A pastry shop and bakery in Perth has been ordered to pay over $9000 to an employee found to have been unfairly dismissed for stealing wastage.

The employee had been employed in 2012 and at the time of the dismissal was a pastry cook assistant. She had been the subject of previous warnings, including a final warning.

While examining starting and finishing times using CCTV footage, the employer noticed on a shift the employee organising with another worker to have a sponge cut and decorated. The other employee agrees, decorates the cake and the employee picks up her belongings and the cake and leaves. As it was captured on CCTV, it was seen that at no time throughout the video does the employee behave furtively. Throughout the video in no way does the employee act to hide or disguise what she is doing.

The employee believed the excess cake, the two pieces one on each end, are usually thrown out. It was wastage. The employer said it was not, and all products could be repurposed or taken by staff (on approval).

The employer sought legal advice and formed the view that the employee had stolen the sponge cake.

The employee was asked to attend a meeting and was not told the reason, nor was she allowed a support person of her choosing. English was her second language and despite contacting a union, the employer denied her representation.

The Commission found that while the employee was not given permission to take the sponge by the employer, there appeared to be a culture where wastage products were removed by employees. Nothing in her actions that day indicates the employee knew she was doing something the employer might punish her for. This suggested that sometimes taking produce without paying was occurring in the workplace.

The Commission accepted the employee’s evidence that what she did that day, taking produce from the kitchen without paying, was not unusual in the workplace. The Commission accepted the employee genuinely believed the other baker was authorised to give her permission to take the sponge cake without paying.

The employee had received a number of disciplinary warnings however none of those were in any way related to the taking of produce without paying, which was the reason for dismissal. The dismissal was based solely on what the employee viewed as serious misconduct, taking the produce without paying.

The employee’s first language was Farsi and English was her second language. The Commission was of the view that she would have been disadvantaged in having a discussion of the nature at the termination meeting that occurred on 9 October 2021 without an English-speaking support person.

Given this background, and the serious nature of the allegation made by the employee, and that in reply to the employer’s email on October 8, 2020, the employee had explained she had attempted to get the Union to attend and support her at the scheduled meeting and requested the meeting be rescheduled, it was unreasonable and prejudicial to the employee for the October 9, 2020 meeting to proceed in the absence of her having a support person.

A proper informed discussion with the employee and her support person would have ensured the employer understood the employee’s explanation as to why she had done what she did; that she had asked the other baker’s permission to take the cake.

The employer would then have had the opportunity to investigate her explanation fully. Overall a more informed decision could have been made by the employer but unfortunately this is not what occurred. There was no urgency. Standing the employee down for a few days would have allowed this to all have been done fairly.

The dismissal of the employee was unreasonable. There was no valid reason for the dismissal and the procedure followed was prejudicial to the employee. The dismissal of the employee was unfair. At the time of the dismissal, the employee was paid five weeks’ wages in lieu of notice, notwithstanding the dismissal was summary for serious misconduct. This amount was deducted from the amount of compensation ordered.

The Commission also noted that during this time of the cutting of the cake neither of them were doing work for the employer. This itself was misconduct which contributed to the employer’s decision to dismiss the employee.

Lessons

The main lesson is that the employer acted too hastily and quickly in concluding that theft was proved. If the termination meeting had been conducted fairly, with an interpreter or representative, and the employee had been given a proper opportunity to respond, then the misunderstanding would have been cleared up and lesser action taken.

Second, the employer did not speak to other employees to clear up the issue either. Even if a modicum of procedural fairness had been followed, the result would have been different and a costly unfair dismissal avoided.


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