Can you fire someone for intending to steal?

Catching an employee intending to steal company property is enough for employers to take disciplinary action, even if nothing has been stolen yet, according to an Australian Fair Work Commission decision.

In a recent case, the Commission rejected a mining worker’s unfair dismissal claim after he was caught preparing to steal cables owned by Appin West Coal Mine.

According to an Employment Law Matters article by Lander & Rogers senior associate Paul McKaysmith and lawyer Shane Wescott, the employee was working as a ventilation operator at the mine.

He was accused of preparing to steal cables used by the company which contain a large amount of copper wiring, which can be stripped and sold for a high price.

Supervisors noticed the worker had moved the cables to a different location and that his personal vehicle, a Landcruiser with a one tonne tray, had “stringers” in the tray which could be used as a resting place for the pallets used to carry the cables.

The company claimed that the worker had driven his vehicle on to the site through a gap at the mine’s boom gates, which breached its transport management plan, and failed to contact security before parking in a remote area of a paddock on the site.

This led to the mine’s production manager believing that the employee was planning to steal the stringers and the cables and a professional investigator confirmed that view.

In meetings with the company, the worker claimed that he thought the cabling he moved was actually used hosing and he was using his own vehicle because the company forklift was unavailable.

He was fired and took his case to the Fair Work Commission, which found his explanation implausible and dismissed his application.

Could Kiwi employers take the same action?

Blair Scotland, partner at Dundas Street Employment Lawyers, said a case would need to be very clear-cut to justify such disciplinary action.

“Technically it’s possible in New Zealand, but you would want pretty clear, unambiguous evidence that that was really the only feasible explanation as to what’s going on. What you’re looking for is some sort of behaviour or action that destroys the trust and confidence that an employer needs to be able to have in the employee.

“It would be open to challenge if the employee was able to put forward a vaguely cogent alternative response to what it was they were doing. For that reason, what you sometimes see employers do is rather than refer to theft or stealing in their policies, they talk about unauthorised possession of company property or other employees’ property. That’s a lower threshold. Then it’s just about, did they have it in their possession or not? Did they have authorisation or not?”

In cases where there’s no clear evidence that the employee was intending to steal, it could be a better option for employers to put measures in place to prevent the behaviour from happening again, or to capture the right evidence if it did reoccur.

“There are other ways to go. Biding your time could be a good one.”

Have you ever fired someone for planning to steal company property?