The Fair Work Commission (FWC) has upheld the dismissal of two employees involved in the theft of cigarettes from a Virgin Australia flight’s freight load.

The employees were dismissed after the airline’s internal investigation revealed that one of the employees, a non-smoker, had stolen two packets of cigarettes from a box and gave them to his colleague.

The colleague then offered cigarettes to two other employees during a smoking break, telling them that the other employee had taken them from the aircraft’s load.

The two other employees declined the offer, and one later reported the exchange to the duty manager.

After the duty manager made enquiries, he was informed that two packets of cigarettes were found missing from one box being sent from Sydney to Cairns. The duty manager thought it was most likely the cigarettes were stolen from the freight hold of the aircraft when it was being loaded at Sydney Airport.

The employees in question were then suspended on full pay while Virgin Australia conducted an investigation into the incident. Despite a lack of CCTV evidence, the company concluded that the two employees had stolen and received the goods. They were both summarily dismissed for serious misconduct.

The same day, one of the employees, the smoker, made a post on social media which included:

“TO ALL WHO READ THIS, [Virgin Australia’s Sydney Airport operations manager] ALONG WITH HIS HUMAN RESOURCES PARTNER … HAVE FIRED ME TODAY AND HAVE NOT PROVIDED ME WITH ANY EVIDENCE. THIS IS HOW EMPLOYEES ARE TREATED. I WILL NOW HAVE TO RECONSIDER MY WEDDING IN MAY.

I HOPE YOU TWO DESPICABLE HUMAN BEINGS HAVE A MERRY CHRISTMAS!!!!!!!!!!!”

However, in the unfair dismissal hearing, FWC Deputy President Peter Sams found that Virgin Australia had “an overwhelming evidentiary foundation to conclude, on the balance of probabilities” that the two employees were responsible for the theft.

“In my view, Virgin’s evidentiary case provided a sound, logical and rational foundation for the Commission, to be satisfied that [the employees’] denials of involvement in the theft, cannot be accepted,” Deputy President Sams said.

“Obviously, neither [employee] pleaded the severity (harshness) of their dismissal in the context of a theft amounting to just two packets of cigarettes, valued at probably less than $50.00 total. To have done so, would be to contradict their consistent line that they had not done anything wrong and had neither stole, nor received stolen freight.

“Whether it was a relatively small value theft or something more substantial, is really not the point. Theft is theft – no matter the value.

“However, had [the employees] not been untruthful during their investigation and in their evidence before the Commission and in [the smoker’s] case, his self-serving concoction of invention, I might have put their conduct, particularly in [the non-smoker’s] case, down to a stupid and very bad error of judgment.

“By not admitting their conduct, I am reminded that it is often not the conduct itself that determines one’s fate, but the subsequent attempt at cover-up.

“Nevertheless, regrettably, [the employees] have ‘made their bed and must now lie in it’. I am satisfied the allegations against [the employees] have been proven,” Deputy President Sams said.

He went on to say that the smoker’s “inappropriate, if not offensive social media post would make it highly problematic that the trust and confidence in the employment relationship could be restored, even if he had sought reinstatement”.

“Presumably, [the employees] did not strongly argue the ‘harshness’ of their dismissals, because that might have inferred that they had done something wrong, when they maintain they were simply not guilty of the allegations against them,” he said.

“There are no matters in mitigation which would outweigh the seriousness of the allegations against [the employees] and their clumsy attempts at cover-up.”

The unfair dismissal applications were dismissed.