Employee theft: Bosses still have a duty

Theft – no matter how small – is grounds for dismissal, but employers must investigate allegations of theft and give employees a chance to respond in full. By PETER VITALE

By Peter Vitale

Theft – no matter how small – is grounds for dismissal, but employers must investigate allegations of theft and give employees a chance to respond in full.

The Australian Industrial Relations Commission has once again indicated the seriousness with which it views employee theft. In Whiting v Greenbank RSL, the AIRC backed the employer’s decision to terminate an employee for the theft of $24, despite finding that the employer’s failure to show the employee a surveillance video was “a matter of some concern”. In addition, the commission found that the surveillance video allegedly showing the theft was “inconclusive”.

The duties of the employee, named Whiting, included selling over the counter alcohol to patrons of the RSL club. At the end of the day in question, the cash till failed to balance by $24. Surveillance video taken by equipment installed on the premises showed the employee selling a carton of beer at the price of $24 to a customer and taking change out of the till and handing it to the customer. The film then showed the employee open the till and remove something.

She was then shown shifting receipts and other objects which appeared to be paper (money, according to the employer) from hand to hand, and ultimately, according to the employer, hiding it in her blouse.

The employee’s explanation for the shortfall in the cash balance of the till was found by the commission to be “improbable”. She claimed that the customer had changed his mind and not purchased the beer, and that she had not properly voided the transaction. The customer gave evidence that he did not change his mind. The commission rejected the employee’s evidence on this issue.

Even though there was no clear evidence that the employee had removed money, the commission found that there was sufficient evidence to enable the employer to reach the conclusion, on the balance of probabilities, that the employee had committed the theft.

The commission also did not give significant weight to the employer’s failure to show the employee the surveillance video before deciding to terminate her employment.

The lessons for employers:

While the AIRC generally considers theft by an employee to be proper grounds for summary dismissal, employers need to make sure that they conduct a proper investigation into any allegation of theft.

The employee should be given an opportunity to respond to the allegations in full, including being shown surveillance footage, if any.

Employers will not be expected to conduct an investigation as if they were the police, and are not expected to prove the theft to the criminal standard of “beyond reasonable doubt”. It is still important for employers to be thorough and fair in any investigation, given the serious nature of theft allegations.

Peter Vitale is the principal of CCI Victoria Legal

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