Company says he accepted bribes but supervisor said he was 'set up'
The Fair Work Commission (FWC) recently dealt with a supervisor’s claim that he was unfairly dismissed, arguing that he was not duly notified of the allegations against him.
Meanwhile, the employer argued that he was fired because he had accepted gifts and bribes from its subcontractors, which tainted his impartiality and breached company policies.
Kaushang Shah claimed he was unfairly dismissed by Team Global Express Pty Ltd (TGE) from his job as a despatch supervisor. His role involved him allocating work to drivers who were subcontractors.
TGE dismissed him for serious misconduct after an investigation found that he accepted a gift of two bottles of scotch whisky from a subcontractor driver and was involved in receiving a bribe in the form of construction of a deck at his home, both allegedly in return for favourable job allocations.
The worker denied accepting any scotch and said that “he paid for the decking” and “it was not a bribe.” He also said that “he did nothing wrong and that he was ‘set up’ by a subcontractor.”
The company’s policies included the following:
“Serious misconduct may occur on-site or off-site in the course of or related to an employee or contractor’s employment or engagement. Serious misconduct includes but is not limited to: engaging in conduct to obtain a personal benefit (financial or otherwise).”
“[The employer] prohibits the giving or receiving of gifts, entertainment or hospitality that could affect either party’s impartiality, influence a business decision, or lead to the improper performance of an official duty.
Employees are expected to ensure that the giving or receiving of gifts, entertainment or hospitality:
“Under no circumstances should the following be given or received: gifts of alcohol or tobacco.”
“Employees who do not strictly comply with the policy will face disciplinary action which may include counselling, formal warnings or termination.”
During the investigation, the worker argued that he was not afforded procedural fairness because the employer’s process was "flawed and biased," alleging that "not all avenues of enquiry were pursued."
He said the employer "should have obtained video footage of the restaurant," which he said "would have shown that he did not walk out with a bag containing the bottles of scotch."
He added that "his claims about being framed by [a subcontractor] were not accepted," and that "insufficient enquiries were made about the said subcontractor's income and the jobs allocated to him, which the worker said "would have supported his defence."
In its decision, the Commission investigated several witnesses’ statements concerning the worker’s alleged misconduct and said the co-workers and subcontractors who filed such submissions were “more credible” than the worker’s claims.
Consequently, the FWC found he breached the employer’s policies. "[The supervisor] breached the employer's policy by engaging in conduct to obtain a personal benefit, namely the scotch,” it said.
“Accepting a gift of scotch by a subcontractor to whom his role involved allocating work, could affect [his] impartiality, and lead to the improper performance of his duty in allocating work to drivers."
Additionally, the Commission also looked into the construction done for him by specific subcontractors, which were unpaid. "Shah’s action in accepting the work on his decking at home, with no intention of paying for it, was serious misconduct and constitutes a further valid reason for his dismissal."
"He breached the employer's Conflicts of Interest Policy, by actively accepting the decking work without any intention to pay for it. This could affect [his] objectivity or independence of his decision in performing his role at TGE."
Thus, the Commission upheld the employer’s reasons for dismissal as valid and rejected the worker’s claim against it.
