At the time the theft occurred Mr I was playing pool with a Club member. He did not see the thief go behind the counter and steal the money. The theft was only discovered the following morning by the Club’s manager who was present at the club on the day of the robbery, but was working in the office upstairs at the time.
At his disciplinary meeting Mr I admitted he had been playing pool at the time of the theft and knowing that the Club had banned its staff from doing this during work hours. However, he reported that the manager had played pool with him while on duty, including earlier on the day of the theft. Mr I then argued that he had other duties that required him to leave the counter and that he was not even responsible for the unlocked safe, since it was the job of the manager who was in charge of the Club at the time.
The case made it to the Employment Relations Authority (“ERA”) which had to decide whether (1) the decision to dismiss Mr I was one a fair and reasonable employer would have made in all the circumstances at the time and (2) whether Mr I was unjustifiably disadvantaged by being treated differently than the manager over their conduct on the day of the theft.
On the first matter the ERA concluded that there was definitely serious misconduct on Mr I’s part. He breached the Club’s clear and known policy and by doing so he created an opportunity for the theft to occur.
The employer did not know about the manager playing pool until Mr I responded to the allegations against him. The manager was then warned that he wouldn’t have a job if he did it again, but no formal disciplinary steps were taken. Following that he even participated in the decision to dismiss Mr I. During the ERA investigation the employer told the Authority that the manager could not be dismissed because he was the only other staff member (apart from Mr I) that had the necessary knowledge and skills. Not surprisingly, the ERA concluded that there was disparity in the treatment of the two employees.
Because of the difference in treatment the ERA held that the dismissal of Mr I in those circumstances was not what a fair and reasonable employer would have done. He was awarded $4,000.00 in compensation for hurt and humiliation.
This case serves as a warning to all employers to conduct an investigation properly if an employee has done something wrong, and to make sure that no favouritism exists.
