James O’Brien, who told his boss he found the $50 voucher crumpled up on the floor, kept it for himself after the customer left it at the bar. He went on to use it on six occasions to buy food.
O’Brien worked behind the bar at Hornby Working Men’s Club and Mutual School of Art Incorporated when he was dismissed for theft and serious misconduct.
However, in a recent ERA decision, the bar was ordered to pay O’Brien $3080 for lost wages and compensation as he was “unfairly dismissed”. He initially sought $40,000.
According to the decision a customer was trying to use her voucher to purchase a drink last December but as the worker at the time wasn’t familiar with how to process the voucher, she left it with them at the bar.
O’Brien assisted the worker by putting it through and told them he would return it to the customer but instead pocketed the voucher that still had money left on it.
During a meeting with the club’s general manager Timothy Mathews, O’Brien was confronted about the voucher as well as CCTV footage that showed him taking an opened bottle of wine home wrapped in an apron.
It was later established that O’Brien had been told by a supervisor that it was okay to take the bottle of wine.
A second meeting was organised and Mathews said he told O’Brien that he was more than likely to be dismissed and should seek representation, however, O’Brien disputes this, stating he thought the meeting would result in a warning.
During this meeting, O’Brien was told his employment was ending immediately despite offering to pay the money for the voucher back.
Mathews told the ERA that he didn’t take any notes during the two meetings and failed to give O’Brien a practical opportunity to get legal advice.
He also accepted that he formed a negative view of O’Brien after the incident and didn’t consider another disciplinary action alternative to dismissal as he didn’t want the committee to think he didn’t take theft seriously.
The ERA found that while O’Brien misled Mathews on how he got the voucher, the decision to dismiss O’Brien was “unnecessarily rushed”.
The ERA found that the process of dismissing O’Brien was not properly documented and alternative disciplinary options were not considered.
“The procedural deficiencies robbed Mr O’Brien of an opportunity to seek legal advice before the first meeting and reflect on his actions and it has led to a finding that the Hornby Club has not justified its actions in dismissing Mr O’Brien.”
O’Brien was awarded $1580 for lost wages and $1500 for compensation. Costs are at the discretion of the ERA and are reserved while the two parties come to an agreement on costs.
-By Emily Moorhouse
Open Justice multimedia journalist
