Civil standard of proof applies to allegations of theft in workplace investigations (Coogee Legion Ex-Service Club Ltd v Deanna Giblin)

Background

The Employer, Coogee Legion Ex-Service Club Ltd (Employer), operates a club that has VIP lounges, bars and function facilities overlooking Coogee Beach. The Employer conducted an audit that found they were a missing a large amount of stock of food and beverages. The Employer then updated its policies regarding expectations for handling stock and processing transactions, communicated this to staff, and scheduled a meeting to communicate the changes to staff.

During that meeting, the Employer reiterated the changes to the policy which set out “supplying or accepting drinks without payment is considered as theft and staff involved may be dismissed”.

After the meeting, staff remained on site to socialise and CCTV footage showed that Ms Giblin ordered a drink that she did not pay for.

Deputy President Wright found that Coogee Legion Ex-Service Club Ltd (Employer) had unfairly dismissed Ms Deanna Giblin because there was no valid reason for the dismissal.

Decision at first instance

At first instance, the Deputy President was not satisfied that Ms Giblin had engaged in misconduct and so did not find that there was a valid reason for dismissal. Deputy President Wright was not persuaded that Ms Giblin deliberately accepted the free drink as alleged and found that the alleged misconduct did not occur at [124].

The Deputy President was also critical of the Employer using the terms “fraud” and “theft” in the show cause letter and considered it was intimidatory without an evidentiary basis. The Deputy President said that these words have specific legal meanings and that “conduct must be established to the criminal standard of proof, which is beyond reasonable doubt”.

Decision on appeal

The Full Bench affirmed the Deputy President’s decision at first instance. The Full Bench was not convinced that the Deputy President’s factual finding that Ms Giblin did not deliberately take the free drink to be plainly wrong.

However, regarding the words used in the show cause letter and the standard of proof required, the Full Bench found at [55]:

…The Deputy President appeared to suggest in [152] of the Decision that before an employer dismisses an employee for theft and asserts there is a valid reason for the termination, they are required to establish beyond reasonable doubt that the theft occurred. We disagree. Moreover, we do not agree the Appellant acted in an unconscionable manner. It had a genuine concern about the conduct of the Respondent based on the CCTV footage.

The Full Bench held that an allegation of theft does not need to be established beyond reasonable doubt before it can be put to an employee. In particular, if an employer believes that property has been taken by an employee, based on the available material and on the balance of probabilities (the Briginshaw v Briginshaw standard), then “there is nothing untoward in alleging the employee’s conduct constitutes theft”.

Key takeaways

This decision affirms that employers are not required to establish allegations of criminal conduct in a workplace investigation to the criminal standard of proof. The ordinary standard of proof on the balance of probabilities continues to apply.

Read the full text of the court’s judgment here: Coogee Legion Ex-Service Club Ltd v Deanna Giblin [2024] FWCFB 270; BC202406922.

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