By Kelly Godfrey

A supermarket worker has won unfair dismissal case on appeal after the Full Bench of the Fair Work Commission (FWC) found his employer’s disciplinary action – dismissal – harsh, unjust or unreasonable.

In Robert Johnson v North West Supermarkets T/A Castlemaine IGA (2017), Mr Johnson commenced employment in October 2008 as a delicatessen assistant at Castlemaine IGA supermarket. On 7 February 2017, Mr Johnson was dismissed for taking two 100-gram samples of smoked salmon, prosciutto, and a ham bone from IGA.

Mr Johnson lodged an unfair dismissal application in the Fair Work Commission (FWC). He alleged that his supervisor had approved him taking excess product at the conclusion of his shift. This practice had been in operation for at least 18 months at the time of Mr Johnson’s dismissal.

Initially, the FWC found that there was a valid reason for dismissal. Although the taking of samples was authorised, it was contrary to IGA policy. Therefore, Mr Johnson’s unfair dismissal application was dismissed.

Mr Johnson lodged an appeal to the Full Bench of the FWC. It found that the decision to terminate Mr Johnson’s employment was disproportionate to the misconduct and hence was harsh, unjust or unreasonable. The issue of compensation was then referred back to the FWC for determination.

In considering what compensation award to make, the FWC considered:

• what Mr Johnson would have earned had he not been dismissed;
• the length of his employment;
• Mr Johnson’s attempts to mitigate his loss;
• any income Mr Johnson earned after the dismissal up until the actual date of compensation;
• any other relevant factors such as any misconduct by Mr Johnson, his age of 63 years, his difficulty in finding comparable work;
• the fact there had been no recent refresher training on the policies by IGA; and
• Mr Johnson was not given an opportunity to respond prior to the decision being made to dismiss him.

The FWC awarded Mr Johnson $8,531.27.

Lessons for employers

Prior to making the decision to terminate an employee’s employment, give them an opportunity to respond.

Make sure the disciplinary action is a proportionate reaction to the misconduct that has been engaged in by the employee.

If there are other employees similarly engaged in the misconduct, ensure they are treated equally, dependent of course on the employee’s own circumstances.