Standard of proof of theft to justify dismissal for misconduct

While the expression was not used in the letter of termination it is clear that the applicant was dismissed for theft . In such cases it is appropriate to have regard to the considerations referred to by Dixon J in the case of Briginshaw v Briginshaw.
‘The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. …It is often said that such an issue as fraud must be proved “clearly”, “unequivocally”, “strictly” or “with certainty” This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. …. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. ’ Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (30 June 1938) [emphasis added, references deleted]
While the Commission is required to apply the civil standard of proof, that is ‘the balance of probabilities’, given the serious nature of the alleged misconduct about which it must be satisfied in this case, it must be careful not to rely on ‘inexact proofs, indefinite testimony, or indirect inferences’……………….
I am satisfied, based on the evidence presented to me in the proceedings, that the applicant did not receive any money from Mr Shiraz. It follows that she was not guilty of misconduct and the respondent had no valid reason for her dismissal.
Walker v Salvation Army (2017) FWC 32 delivered 16 January 2017 per Hamberger SDP