A meatworks employee sacked for stealing a can of Coke from an open vending machine has been awarded compensation of $28,280 and access to accrued long service leave after the Fair Work Commission found dismissal harsh.
Cannon Hill Services, trading as Australian Country Choice, sacked the boner on December 11 2019 for “serious misconduct” after he was filmed taking a can of coke from the vending machine in the abattoir’s break room.
The commission heard evidence from two workers about their negative experience with the break room’s machines, including one worker who said he had lost more than $100 to the machines.
The sacked worker said that in the first couple of years of his employment he had so many problems with the vending machines that he stopped using them. For the last three years he went back to using the machines a couple of times a week and estimated that he had lost at least ten dollars.
Arguing the sacking was harsh, the Australian Meat Industry Employees Union said the worker had a previously impeccable disciplinary record over nine and a half years of service.
The union noted the “relatively trivial value” of the can of soft drink; that the conduct was out of character and that the workers readily admitted what he had done.
It said the seriousness of the conduct was mitigated to some extent by the fact the worker had lost a significant amount of money to the vending machine.
The commission found there were “enough mitigating circumstances including his immediate expression of remorse, and his long and unblemished history with CHS” to conclude the worker’s dismissal was harsh and, on that basis, unfair.
“(He) engaged in one instance of misconduct in nearly 10 years of otherwise unblemished service which in its proper context was a one off opportunistic and momentary lapse of judgment in taking the can of Coke without paying for it,” the commission found.
“It was out of character for him and occurred in circumstances where it was the last working day before plant shut down, the vending machine door was left open and he had on multiple previous occasions paid money for an item from one of the vending machines without obtaining that item because of some operational fault in the vending machines.”
The commission was satisfied the worker engaged in misconduct that contributed to CHS’s decision to dismiss him and “it is plain on the evidence the one instance of misconduct was so serious from CHS’s perspective, that it alone warranted summary dismissal”.
But while CHS had a valid reason for dismissal, the commission ultimately rejected the decision that dismissal was the appropriate course “taking into account all of the full context and circumstances of this case”.
“However, whilst I have found the misconduct was a momentary lapse of judgment, and out of character, it is important that this decision not be misunderstood as an indication that such conduct should not generally be regarded as serious,” the commission said. “The outcome here turned on the specific facts of this case.”
Given the nature of the misconduct, a reasonably significant discount was appropriate and the commission cut the amount of compensation by 20 per cent to $28,280. It said the worker was also entitled to a payment of pro rata long service leave.