A recent decision by the Fair Work Commission (FWC) has outlined the evidentiary burden to be met by employers when dismissing employees for misconduct. The FWC upheld the dismissal of two employees involved in the theft of cigarettes from a Virgin Australia flight’s freight load.

An internal investigation was conducted by Virgin after it was suspected that one of their employees, a non-smoker, had stolen two packets of cigarettes and given them to a colleague. The investigation discovered the colleague had offered the cigarettes to two other employees during a break, revealing to them that the other employee had taken them from the freight load. The two other employees declined the offer, and one later reported the exchange to the duty manager.

Virgin followed up on the packages which were to be sent from Sydney to Cairns and found two packs of cigarettes to be missing. The manager on site indicated Virgin’s process meant it was likely the cigarettes were stolen from the freight hold of the aircraft when it was being loaded at Sydney Airport.

The employees were suspended on full pay by Virgin to allow for an investigation. Despite a lack of CCTV footage, Virgin came to the conclusion two employees had stolen and received the cigarettes. They were both summarily dismissed for serious misconduct.
On the day of dismissal, the smoker made a post on social media which claimed that “[Virgin] HAVE FIRED ME TODAY AND HAVE NOT PROVIDED ME WITH ANY EVIDENCE.”

Contrary to this view, FWC Deputy President Peter Sams found that Virgin Australia had “an overwhelming evidentiary foundation to conclude, on the balance of probabilities” that the two employees were responsible for the theft of the cigarettes.
Deputy President Sams stated went on to state that “Virgin’s evidentiary case provided a sound, logical and rational foundation for the Commission, to be satisfied the denials of involvement in the theft, cannot be accepted.”

A key factor considered by the FWC was the dishonesty of the employees attempting to cover up the theft. The FWC outlined that the value of the items stolen were irrelevant when placed against the deceit of denying their conduct. This resulted in the employment relationship breaking down beyond repair. This breakdown underpinned the decision from the FWC to uphold the dismissal.

This matter highlights the importance of thorough processes when terminating employees contracts. If looking to dismiss an employee for misconduct, it is critical the employer has an evidentiary basis to lean upon. Accordingly, investigations and proper legal advice is integral.