Autumn Bulletin

the facts
robert Walker was employed as a
Leading Hand at Cowra Quartz Quarry
(cowra Quartz). Mr Walker was
summarily dismissed for misconduct
on 2 July 2010, after a fellow employee
saw a trail of oil drips leading from
a large oil drum in the quarry shed
towards the car park where Mr Walker’s
utility vehicle was parked. This was
reported to the quarry manager, who
formed the view that Mr Walker had
filled up his own oil containers, of which
there were two in the utility tray, with
oil from the drum. Without Mr Walker’s
knowledge, the quarry manager took a
sample from one of the oil containers
and had it tested to determine its origin.
Later that afternoon, during a brief
conversation in the quarry yard and
not in the presence of a witness, the
quarry manager asked Mr Walker if he
had put oil from the drum into his own
oil container. Mr Walker denied this and
maintained that the contents of the
container were a mixture of privately
purchased oils. The quarry manager
did not reveal that he had taken a
sample of oil from the container in
Mr Walker’s utility.
Four days later, the quarry manager
informed Mr Walker that an oil sample
had been taken from his container for
analysis against a sample from the
drum (cowra Quartz analysis).
Mr Walker was stood down on full pay
for the duration of the investigation.
The Cowra Quartz analysis concluded
that the two oil samples were from the
same source. Mr Walker subsequently
sought an analysis of the oil samples
from an alternate laboratory
(alternative test).
Mr Walker was directed to attend
formal disciplinary meetings with Cowra
Quartz to discuss the findings of their
investigation. Acting on legal advice,
Mr Walker attended the disciplinary
meetings but refused to respond to
the results of the Cowra Quartz
analysis until he received the
alternative test results.
Mr Walker’s employment was
terminated on the findings of Cowra
Quartz’s investigation, three days
before the alternative test results were
received. The alternative test results
were different to the results of the
Cowra Quartz analysis.
Mr Walker made an application to
FWA for an unfair dismissal remedy
on the basis that his dismissal was
harsh, unjust or unreasonable.
the issues
Did Mr Walker steal the oil?
FWA confirmed that where an employee
is terminated from employment for a
conduct-related reason, the Tribunal’s
task is not to review the employer’s
decision, but to determine from the
evidence presented in the proceedings
whether the conduct occurred.
FWA found Mr Walker to be a reliable
witness, commenting that “his actions
were those of someone who knew he
had not taken oil from his employer and
was confident that an analysis would
prove him innocent.” It found that no
misconduct in the form of theft occurred
and that there was no valid reason for
Mr Walker’s dismissal.
employment
FWA warns employers about invading employee privacy
Fair Work Australia (FWA) has ordered a NSW quarrying company to pay a sacked employee $15,000 after
ruling that evidence the employer covertly obtained to support unfounded claims of theft was inadmissible. 1
Was the oil sample taken from Mr
Walker’s utility unlawfully obtained?
FWA held that the vehicle and oil
container were clearly Mr Walker’s
private property; and as the quarry
manager did not have the authority to
search Mr Walker’s property and take
the oil, his actions were unlawful. By
reaching into Mr Walker’s utility tray
to touch the oil container, the quarry
manager had “technically committed
an act of trespass;” and in opening it
and removing some of the oil, he had
“committed an act of larceny (stealing).”
FWA considered whether the
improperly obtained evidence could
be used by Cowra Quartz, and - on
the basis of the public policy that the
court is not seen to condone illegality
or impropriety - ruled that the evidence
was inadmissible.
Was Mr Walker’s dismissal harsh,
unjust or unreasonable?
FWA concluded that, in the
circumstances, it was unreasonable for
Cowra Quartz to insist that Mr Walker
respond to its allegations once it knew
that he had taken steps to obtain his
own test. Further, by terminating Mr
Walker’s employment before the results
of the alternative test were received,
Cowra Quartz did not provide Mr
Walker with an adequate opportunity to
respond to the allegations against him.
FWA considered that the gravity of the
company’s actions in trespassing on Mr
Walker’s property was of a high order.
Taking this into account, along with
competing evidence on the samples and
the lack of witnesses, it concluded that
Autumn 2011 l Workplace Relations & Safety l Page 1