Despite removing Milo product from his workplace, contrary to policy, and then lying about that when confronted, the Fair Work Commission (FWC) has reinstated an employee, with full back-pay.
The warehouse employee was seen putting some Milo into his bag and was searched on his departure from work. When asked for an explanation, the employee claimed he had brought the Milo from home, not that it was from his workplace.
After an investigation, his employer decided that (a), the Milo was from the workplace and (b), the employee had denied this under investigation. On those grounds the employer dismissed him.
He claimed unfair dismissal and argued that it was his habit to take some Milo home, mix it with other ingredients and bring the beverage back to work. He argued that company policy allowed staff to consume Milo at work, so in essence, since he only ever consumed it at work, he was not really breaching the policy. He further argued that he was flustered by the security check and misunderstood the true nature of the questions he was being asked.
The employer countered that despite those arguments (a), staff were not allowed to take product out of the warehouse and (b) the employee lied when he was challenged.
But the FWC disagreed, and dismissed the employer’s arguments completely. The FWC accepted the employee’s testimony that he never consumed the product at home, so despite noting that the employee was in breach of company policy by taking the product home, FWC came to the view that the Milo was consumed only at work – which complied with policy. And FWC accepted that the employee misunderstood the question asked of him b security.
This case demonstrates that even where companies have clear policies and employees lie, FWC can still side with an employee, where that employee has not cooperated fully, been untruthful, and in this case, made threatening remarks to the manager charged with taking the disciplinary action against the employee. It means employers need to be extra careful and also include alternative disciplinary measures in their enterprise agreements to apply when dismissal might be a step too far.