The Fair Work Commission (FWC) recently ruled in favour of a sacked truck driver and ordered his employer to pay him more than $25,000 in compensation for a dismissal which had been based on flimsy CCTV evidence.

The employer, a freight delivery service provider, had dismissed the driver in March last year for the serious misconduct of theft. The alleged theft involved a box containing a laptop which failed to arrive, along with another package in the same consignment, to its designated destination.

Following a complaint about this undelivered box, the company initiated an investigation through its depot manager who used CCTV footage at its depot facility to locate the missing package. The depot manager believed he had identified the missing box from its recorded surveillance by attempting to match what he saw on the CCTV footage against an image of the packaging supplied by the client. Furthermore, he also alleged that their CCTV footage revealed the driver’s “movements and general manner” as suspicious behaviour as he kept glancing up at the camera while he was handling the missing package, suggesting that he was attempting to obscure it from the camera’s view. These CCTV viewings ultimately led the employer to conclude that the driver stole the missing box.

However, the driver was not given the opportunity to view the CCTV footage during his disciplinary meetings in spite of his requests to do so. The company claimed it had intended to play the footage at a scheduled meeting which he failed to attend due to feeling sick and extreme distress. Although he promptly provided a medical certificate for his absence, the company proceeded on that day to officially issue him a summary dismissal.

The Commissioner ruled the dismissal was unjust and lacked procedural fairness since the driver was not given the opportunity to view and respond to the footage that the company had relied on in making its decision to terminate him. He rejected the employer’s submission in favour of the driver’s claims that the employer had already formed the view that he stole the box, that he was not advised the CCTV footage would be played at the scheduled meeting and that the intention of that meeting was to advise him of his dismissal.

In addition, the Commissioner found “no clear or cogent evidence” to prove that the driver stole the missing box citing the employer’s reliance on the CCTV footage as speculative – “the considerable distance between the position of the camera and the [driver] in the loading bay video undermines the reliability of the claims made by [the employer] as to why the [driver] may have dragged a particular box, or whether he was as a matter of fact even looking directly at the CCTV camera”.

 

FWC’s ruling here is a reminder of how vicariously liable employers are for their workplace investigation outcomes, so it is essential that a complaint be handled well. Workplace investigations conducted by iHR Australia are fair, impartial, prompt and thorough; bringing credibility and impartiality to the issue at hand and offers a balanced, pragmatic approach to determine the best way forward. Our independent workplace investigators are focused and sensitive throughout the investigation process to ensure that all parties are heard and understood. We deal with informal to significant and complex investigations which can extend into operational, senior executive or board level complaints, including liaising with unions who represent parties to a complaint.

Our proven expertise ensures independence and objectivity in dealing with matters of evidence as well as insight into the source of the grievance such as lack of capability, culture, procedures and management styles. iHR Australia’s range of workplace investigation services can help to ensure that internal workplace investigations are not only sound but able to stand up to external testing.

iHR Australia also undertakes reviews of internally conducted investigations and regularly conducts both in-house and public Workplace Investigation Officer Training courses around Australia.

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