Three Toll employees have won their jobs back before the Fair Work Commission after they were sacked for stealing work uniforms.
Sione Amiatu, Franke Ioane and Marcello Mastroianni won their unfair dismissal claim and secured an order to be reinstated by the transport giant after they were terminated in October last year.
The three men were dismissed after they were captured on CCTV footage taking two Toll vests, one Toll jacket and one Toll beanie from a box of uniforms they found whilst working an afternoon shift at Toll’s Altona Road depot in Victoria.
Believing they had not done anything wrong, the men wore the stolen items to work the following day.
But after seeing the CCTV footage, Toll managers considered the employee’s actions as theft, which Toll treats as serious and wilful misconduct, and commenced an investigation and disciplinary procedures.
But the matter was further complicated when a Transport Workers Union (TWU) organiser convinced the men, two of whom were of Samoan heritage and whose English skills were “mildly inhibited”, to resign rather than be sacked.
The TWU organiser, Peter Banbury, had told the workers “they are going to sack you and call the coppers” and told them they had no other choice but to quit. Banbury then supplied paper and dictated resignation letters for the workers to handwrite.
However, Commissioner John Lewin found Banbury had organised with Toll for the men to resign rather than be sacked without consulting the men and without their authorisation. He subsequently found the men had not resigned of their own accord and had in fact been dismissed.
Lewin then looked at whether the dismissal was harsh, unjust or unfair. He ruled the employees’ actions were not theft and therefore could not be serious and wilful misconduct.
“I am not convinced that the evidence is of sufficient quality to establish a dishonest intention on the part of the applicants, nor is the evidence of sufficient quality to enable me to be satisfied that the applicants intended to permanently deprive Toll of the items of uniform work clothing,” said Lewin in his judgment.
“Nor do I consider that theft, as a reason for the dismissal of the applicants, to be a sound, defensible or well founded reason on an objective analysis of the evidence before me.”
Lewin consequently ordered Toll to reinstate the employees.
Employment lawyer Peter Vitale told SmartCompany the commission found the workers were only given a choice to resign or be sacked and as such there was not a full investigation into their actions.
Vitale says the case is a reminder for employers to conduct full and proper investigations, especially if the allegation is as serious as theft.
“The commissioner makes the observation that, with an allegation of this nature, you need evidence that is better quality than say, the type of evidence you might put forward in the instance the employee has been a poor performer,” he says.
“That standard of evidence won’t be enough when allegations are much more serious. One lesson for employers in these circumstances is to ensure that their investigations are sound.”
Vitale also adds that, without casting doubt on the commissioner’s judgement, it is “unfortunate” Toll appeared to be acting in good faith by working with the TWU representative. He says employers should make sure any third party is acting on the advice from a worker and not on their own interests.
“When dealing with any third party representative, such as solicitor or union organiser, be absolutely sure what is being told accurately reflects the interests of the employee,” he adds.
SmartCompany contacted Toll but the company declined to comment.
Kirsten Robb is a former journalist at SmartCompany. Previously, she worked at News Corp as a property reporter for Leader Newspapers and the Herald Sun, and holds a Masters of Journalism at Melbourne University.
