A tradie accused of theft for borrowing a ladder to help his locked-out daughter has won his unfair dismissal claim and $19,400 compensation.
The Fair Work Commission found the man’s dismissal was “not unjust”, but was also “harsh and unreasonable”.
Tradie accused of ‘theft’ for borrowing ladder
Gary Davidson had worked for Sydney Tools for two years when he found himself “caught in a difficult situation” on Sunday 19 March.
His daughter had called him for help after locking herself out of her apartment.
The Commission said:
“Mr Davidson then devised a plan to use a ladder to climb up to the balcony of his daughter’s first floor apartment and enter it by an open door leading on to the balcony”.
As he did not have a long enough ladder for the job, he borrowed one from his employer.
His manager was off sick, so Mr Davidson informed a junior colleague that he would return the ladder the next morning.
Which is exactly what he did at 6.50am on Monday.
However, later that day, Sydney Tools summarily dismissed him for theft.
Management accused him of engaging in behaviour “inconsistent with the continuation of … [his] contract of employment”.
‘Theft is a very serious allegation’
Mr Davidson subsequently filed an unfair dismissal claim in the Fair Work Commission.
According to the Fair Work Act, theft is serious misconduct and a valid reason for dismissal.
However, on the day of the hearing, Sydney Tools “abandoned its contention that Mr Davidson had engaged in theft”.
Instead it argued the ladder incident had been the “final straw” after prior warnings about his performance and conduct.
Fair Work deputy president Tony Saunders criticised the Sydney Tools for the way it handled the matter.
“Sydney Tools should never have alleged, let alone stated in Mr Davidson’s termination letter, that he engaged in theft,” he said.
Mr Saunders said that “at all times it was known to Sydney Tools” that Mr Davidson had borrowed the ladder and had always intended to return it.
“At no time did Mr Davidson have, or display, an intention to permanently deprive the owner of the ladder, Sydney Tools, of its property”.
“That is one of the elements of the crime of theft.
“Theft is a very serious allegation. It should not be made lightly or without a proper investigation.
“Dismissing an employee for theft can have a significant impact on the employee and their ability to obtain alternative employment.”
NEXT READ Procedural fairness
The Commission said that although Mr Davidson breached policy and procedure, it did not warrant dismissal.
Mr Davidson’s conduct was “not dishonest” and warranted a warning rather than the “disproportionate response” of dismissal.
Mr Saunders also found the dismissal lacked procedural fairness.
“A fair investigation would have involved giving Mr Davidson a reasonable opportunity to explain in detail what had happened and why he had acted in the way that he did when he borrowed the ladder from work.
“If Mr Davidson had been provided with such an opportunity, there is no doubt that he would have explained in detail the difficult situation his daughter faced on the previous afternoon.”
Mr Saunders ordered Sydney Tools to pay Mr Davidson four months wages, minus a 10 percent discount on account of his “misconduct”.
“My view is that a remedy of compensation in the sum of $19,401.75 in favour of Mr Davidson is appropriate in the circumstances of this case.”
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