Unfair Dismissal: Peter Mulhall v Direct Freight (Qld) Pty Ltd [2016] FWC 58

A man who worked as a pick-up and delivery driver for Direct Freight (Qld) Pty Ltd T/A Direct Freight Express was awarded $25,468.13 after the Fair Work Commission found his dismissal was unjust, unreasonable and lacked procedural fairness.

In January 2016, Mr Mulhall filed an application under s 394 of the Fair Work Act 2009 that he had been unfair dismissed as a pick-up and delivery driver at Direct Freight (Qld) Pty Ltd T/A Direct Freight Express (Direct Freight Express).

Direct Freight Express claimed they had terminated Mr Mulhall due to “serious misconduct”, believing he had stolen a box containing a laptop that went undelivered to a Harvey Norman Store in February 2015.

Direct Freight Express investigated the matter of the missing box using CCTV footage of Mr Mulhall in a Townsville depot. Two employees of Direct Freight Express, Mr Salter and Mr Deighton, viewed this footage and believed Mr Mulhall to have committed the theft due to his suspicious activity during the loading process. This activity namely involved repeatedly looking at the camera and unnecessarily dragging packages in order to hide the missing box. Further, Mr Salter and Mr Deighton believed they identified the missing box on the conveyor belt due to the boxes size and the distinct tape used on the box.

Mr Mulhall claimed that the box identified in the CCTV footage by Mr Salter and Mr Deighton could not be accepted as the missing box as the footage did not enable the viewer a clear image of the box’s markings nor does it appear to be the same size or shape as the missing box.

Mr Mulhall was not allowed access to view the CCTV footage prior to his dismissal despite his requests.

Direct Freight Express claimed that they had arranged for Mr Mulhall to view the footage at a meeting scheduled in March, however Mr Mulhall did not attend.

Mr Mulhall claimed he was unable to attend the meeting due to medical reasons, of which he provided a medical certificate. Despite receiving the medical certificate and recognising that Mr Mulhall had not seen the footage, Direct Freight Express terminated Mr Mulhall’s employment and sent him a letter advising him of this.

Mr Mulhall believed that Direct Freight Express unfairly conducted the investigation by denying him access to the CCTV footage.

Decision

The Fair Work Commission (The Commission) rejected the evidence provided by Mr Salter and Mr Deighton that they identified the missing box in the CCTV footage as the markings they used to identify the box could not reasonably be seen in the footage. Further, the Commission found the “suspicious” behaviour of Mr Mulhall was nothing more than speculation.

The Commission found that by not allowing Mr Mulhall access to the CCTV footage, he was denied procedural fairness.

The Commission believed there was not clear evidence that Mr Mulhall stole the box and found his dismissal to be unreasonable and unjust. Consequently, the Commission ordered Direct Freight Express to pay Mr Mulhall damages in the amount of $25,468.13.

Read the full decision here  

* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate. 

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