Evidence in unfair dismissal cases

This is an extract from the Fair Work Commission’s unfair dismissal benchbook citing a case which is authority for the proposition that an emnployer cannot use evidence which is obtained unlawfully to support its defence to an unfair dismissal claim.

“The employee was accused of stealing oil from the employer. After becoming suspicious that the theft had occurred, the employer searched for and took samples of oil from the employee’s vehicle without the employee being present. It was held that this evidence could not be used to prove the misconduct and therefore there was no valid reason for the dismissal.

The Commission found that the utility and container were clearly the personal property of the employee. By reaching over to touch the container the employer technically committed an act of trespass. By opening the bottle and removing some oil he committed an act of larceny (stealing). Simply put, he did not have the authority to search the employee’s property and take the oil, and his actions were unlawful. The evidence obtained in consequence of that unlawful act includes the custody of the purported sample and the analysis thereof by the analytical laboratory.”


Walker v Mittagong Sands Pty Limited T/A Cowra Quartz (201) FWA 9440 per Thatcher C deliveed 8 December 2010.