A former Sydney Tools worker sacked after borrowing a ladder to help his daughter when she was locked out of her apartment has been awarded more than $19,400 in lost wages.
The Fair Work Commission this month ruled the shop must pay Gary Davidson as his dismissal was “not unjust”, and could be deemed “harsh and unreasonable”.
Davidson was “caught in a difficult situation” on the afternoon of Sunday, March 19, the tribunal said, when his daughter called asking for help after locking herself out of her Gosford apartment.
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“Mr Davidson then devised a plan to use a ladder to climb up to the balcony of his daughter’s first-floor apartment and enter it by an open door leading on to the balcony,” it added.
Davidson, who did not own a ladder long enough to help his daughter, decided to borrow one from his employer and told a junior colleague he would return it the following morning as his manager was off sick.
He returned the ladder to the shop at 6.50am on Monday, March 20.
However, he was dismissed at 4pm that same day for theft and engaging in behaviour “inconsistent with the continuation of … (his) contract of employment”.
His employers claimed the incident was the “final straw”, insisting that Davidson – a two-year veteran of the company – had received prior warnings about his conduct and behaviour.
On the day of the hearing, Sydney Tools “abandoned its contention that Mr Davidson had engaged in theft”.
“Sydney Tools should never have alleged, let alone stated in Mr Davidson’s termination letter, that he engaged in theft,” Fair Work Commission deputy president Tony Saunders said in his decision.
Saunders added “at all times” the employers knew Davidson had borrowed the ladder and always intended to return it.
Even though he breached company policy by borrowing the ladder without consulting a senior employee, “at no time did Mr Davidson have, or display, an intention to permanently deprive the owner of the ladder, Sydney Tools, of its property”, Saunders found.
“That is one of the elements of the crime of theft,” he said. “Theft is a very serious allegation. It should not be made lightly or without a proper investigation. Dismissing an employee for theft can have a significant impact on the employee and their ability to obtain alternative employment.”
Davidson’s conduct was “not dishonest” and warranted a warning rather than the “disproportionate response” of dismissal, which also lacked procedural fairness, according to the commission.
“A fair investigation would have involved giving Mr Davidson a reasonable opportunity to explain in detail what had happened and why he had acted in the way that he did when he borrowed the ladder from work,” Saunders said.
“If Mr Davidson had been provided with such an opportunity, there is no doubt that he would have explained in detail the difficult situation his daughter faced on the previous afternoon.”
Sydney Tools was ordered to pay Davidson four months wages, minus a 10 per cent discount for “misconduct”.
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