| Summary |
UNJUSTIFIED DISMISSAL – Serious misconduct – Respondent’s president (“E”) investigated circumstances where thief stole $9,100 from unlocked safe behind customer service counter while applicant on duty – Security camera footage showed applicant playing pool at time of theft– E called applicant to disciplinary meeting to answer three allegations – First allegation that breached policy prohibiting playing pool during work hours – Second allegation that breached confidentiality after instructed matter confidential – Third allegation that conduct jeopardised respondent’s gaming licence – Applicant replied orally and by letter, admitting playing pool despite knowing of policy – Applicant claimed manager (“W”) played pool with him while on duty earlier on day of theft – Applicant argued other duties required him to leave counter and that not responsible for unlocked safe as W in charge at time – Applicant denied breaching confidentiality and that theft placed respondent’s gaming licence at risk – Respondent’s management committee voted to dismiss applicant – W’s conduct not investigated – Authority found employment agreement included work rules which listed failure to abide by policies as serious misconduct warranting summary dismissal – Found applicant breached respondent’s clear and known policy – Found respondent entitled to conclude, on allegations of playing pool contrary to instructions and leaving counter unattended, serious misconduct occurred – Found further investigation and consideration of applicant’s explanation then required – W admitted knew policy and played pool with applicant – E warned W would lose job if ignored ban on playing pool again, but took no formal disciplinary steps – E argued could not have dismissed W as only W and applicant had necessary knowledge of gaming processes and operations – Authority found outcomes plainly disparate – Found applicant and W both on premises at time of theft – Found W had additional responsibility as manager to ensure staff obeyed policy – Found fair and reasonable employer would consider W’s culpability for complicity and participation in breach of policy at least as high as applicant’s – Found need to retain one of two not adequate explanation for disparity of treatment – Found dismissal of other employees for playing pool was factor equally applying to applicant and W – Found contemporaneous disparity, without adequate explanation, in treatment of applicant and W over same events – Found nature of disparity of such magnitude to call into question justification of dismissal – Authority also found management committee made real decision to dismiss, by vote - Found while applicant’s written submissions provided to committee and E gave account of oral responses, applicant and representative should have had opportunity to speak to meeting and plead case – Found real prospect applicant might have persuaded members to adopt less severe position, as decision to dismiss not unanimous – Found W’s attendance at committee meeting questioned basic fairness of meeting itself and whether real consideration given to relative severity of outcomes - Dismissal unjustified – REMEDIES – Authority found applicant in position of responsibility – Found deliberate and repeated breach of policy was blameworthy conduct – Found 25 percent contributory conduct - Applicant not worked since dismissal - Applicant provided medical certificate stating seemed stressed and verging on depression about workplace issues – Applicant claimed did not look for work at all in first four months following dismissal as needed mental break - No evidence of job search since – Authority found nothing to support conclusion applicant disabled from seeking other work to mitigate losses - No award for lost wages – Applicant gave evidence of distress, embarrassment, sleeplessness and anti-anxiety medication – Authority found $4,000 compensation, reduced to $3,000, appropriate - Team leader |