4 March 2019

‘Careless’ security guard reinstated after $58,000 theft

In a recent decision involving the cash-in-transit industry, the full bench of the Fair Work Commission upheld a decision to reinstate an armoured vehicle operator (AVO) after his successful unfair dismissal application.1

Initial decision

Armaguard had originally dismissed the AVO, together with his crew leader, after the following ‘string of failures’ that resulted in the theft of over $58,000:

  • The AVO and crew leader picked up a cash consignment from a client.
  • When they returned to their vehicle after collecting the consignment, they found that their armoured vehicle’s outer door had not properly closed.
  • Against company policy, they put the cash into the vehicle’s ‘transfer safe’. The transfer safe is only accessible from outside the vehicle.
  • Upon returning to the Armaguard depot, neither the AVO nor the crew leader emptied the transfer safe. In contravention of company policy, the $58,000 remained in the transfer safe.
  • A despatch clerk incorrectly recorded the money as having been received.
  • Contrary to Armaguard’s procedures, no one checked the vehicle before it went to be serviced.
  • The missing amount of money was not noticed in a global count undertaken by Armaguard.
  • When the receipt for the consignment was mislaid, it was assumed the money had not been collected from the client.

The money was then stolen three days later when the armoured vehicle was sent to be serviced, though was ultimately recovered.

The AVO and crew leader were dismissed summarily for failing to follow proper procedures resulting in the missing money being subsequently stolen.  Both individuals brought unfair dismissal applications against Armaguard and the unfair dismissal applications were heard together.

In respect of the AVO, the Commission in the first instance found that the dismissal was harsh and unreasonable.  The Commissioner noted that the conduct of the AVO was ‘negligent and in some cases careless’, but that it was conduct that ‘while deserving of censure and disciplinary action, was not of sufficient gravity to warrant dismissal, much less summary dismissal’.

The Commission found that Armaguard had failed to take into account numerous mitigating circumstances, including lack of detail in its policies and procedures and the contributing parts played by other managers and employees of Armaguard.

The Commission ordered reinstatement and lost remuneration of approximately $29,000 plus superannuation (after applying a 60% reduction for the AVO’s conduct).

Appeal

Armaguard appealed the decision on the basis that the Commissioner had:

  • been mistaken in finding that there was no valid reason for dismissal owing to potential reputational harm to Armaguard;
  • been mistaken in finding that reinstatement was a valid remedy as trust had broken down between Armaguard and the AVO; and
  • incorrectly taken into account evidence given by the crew leader who had been dismissed at the same time, and whose application had been heard simultaneously.

In rejecting the appeal, the full bench found that all three grounds of appeal involved issues with Armaguard’s approach towards the hearing at first instance.

Considering ground one, the full bench found that the Commissioner had implicitly taken into account Armaguard’s potential reputational damage when examining the reasons for dismissal.  Additionally, it had found that some of the potential reputational issues had arisen from the failures in Armaguard’s own policies and procedures and due to errors made by other employees of Armaguard who remained employed.

When examining ground two of the appeal, the full bench found that the Commissioner’s finding that no breakdown in trust had occurred was valid.  Accordingly, ground two was dismissed.

Finally, in rejecting ground three, the full bench noted that the two applications had been heard simultaneously at the request of Armaguard, and that it would be unfair for Armaguard to now object to the way in which evidence had been led.

Lesson for employers

When considering dismissing an employee summarily, given the serious consequences for the individual employee, employers should exercise caution and it is crucial to consider all relevant factors and circumstances, such as whether:

  • the employee’s conduct is sufficiently serious to justify summary dismissal, ie. bring an end to the employment relationship, noting that negligence or carelessness (unless characterised as very grave) may not be deemed sufficiently serious to warrant summary dismissal;
  • there are any mitigating circumstances that may be relevant, for example, deficiencies in the employer’s policies and procedures or whether other employees have played a role in the misconduct that ultimately occurred; and
  • a consistent approach has been adopted by the employer in dealing with misconduct of a similar nature in the case of other employees and the sanctions (if any) imposed on those employees.

1Linfox Armaguard Pty Ltd T/A Linfox Armaguard v Craig Symes [2019] FWCFB 556

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