Where an employee is dismissed for misconduct (serious or otherwise) there is an evidentiary onus upon the employee when challenged as an unfair dismissal case in the Fair Work Commission. Not only is it incumbent upon the employer to demonstrate an objectively valid reason for dismissal, but where the conclusions of fact are disputed by the employee, it is very dangerous for an employer to rely upon circumstantial evidence.
“The decision to dismiss Mr Millard on grounds of serious misconduct was based on circumstantial evidence. K & S submits the in cab camera was sprayed with a substance, which appeared to be deodorant, during a shift when he was in charge of the vehicle. Mr Millard had previously expressed concerns that the cameras were an unreasonable invasion of the drivers’ privacy. K & S accordingly concluded he was responsible for the substance being on the camera, and he had “defaced” the camera intentionally. By contrast Mr Millard denies he had anything to do with what occurred. I now turn to consider whether his dismissal was “harsh, unjust or unreasonable” taking into account the considerations in s.387 I must have regard to……………………….. These circumstances do raise a significant issue about whether K & S had a valid reason to dismiss Mr Millard. As the decision in Rode v Burwood Mitsubishi Print R4471, 11 May 1999, Ross VP , Polites SDP , Foggo C. makes clear it is not sufficient for an employer to simply maintain or act in the belief that the termination was for a valid reason. It must instead have a valid reason that is defensible and can be justified on an objective analysis of the relevant facts. In the face of Mr Millard’s denials that he was responsible I am not satisfied that on an objective analysis of the facts it can be concluded that he was responsible for what occurred.
A further issue is also raised in this context. Even if Mr Millard was involved an issue of proportionality arises. The camera does not appear to have been damaged in any way. The evidence does not indicate it was difficult to clean. Its operation does not appear to have been impaired in any ongoing way. While it is acknowledged that the cameras are viewed as an important tool in promoting safe driving practices the circumstances involved in this matter do raise a significant issue about whether they provided a valid reason for summary dismissal on grounds of serious misconduct.”
Millard v K & S Freighters Pty Ltd T/A K & S Freighters (2017) FWC 106 per Gregory C