Worker accused of ‘theft’ for borrowing ladder to help daughter awarded $19,000 compensation

A former hardware store employee was unfairly sacked for borrowing a ladder to help his daughter after she was locked out of her apartment.

A former Sydney Tools employee was unfairly sacked for borrowing a ladder from the store to help his daughter after she was locked out of her apartment, a tribunal has ruled.

The Fair Work Commission this month ordered the hardware retailer to pay Gary Davidson more than $19,400 in lost wages after finding that while his dismissal was “not unjust”, it was “harsh and unreasonable”.

The tribunal noted that Mr Davidson was “caught in a difficult situation” on the afternoon of March 19, when his daughter called him asking for help after locking herself out her Gosford apartment while her husband was away.

“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 said.

As he did not have a long enough ladder for the task, he borrowed one from his employer, informing a junior colleague — after being told his manager was off sick — he would return it the next morning.

Sydney Tools in Archerfield, Brisbane. Picture: Supplied

He returned the ladder to the store at 6.50am on Monday — but at 4pm that afternoon, he was summarily dismissed for theft and engaging in behaviour “inconsistent with the continuation of … [his] contract of employment”.

His employers contended that the ladder incident was the “final straw” after prior warnings about his performance and conduct.

He had worked at the hardware chain, which employs about 900 people, for nearly two years at the time of his sacking.

Mr Davidson lodged an unfair dismissal claim with the Fair Work Commission, which heard the case last month. 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.

Mr Saunders said that “at all times it was known to Sydney Tools” that Mr Davidson had borrowed the ladder and had always intended to return it to the store.

Although he breached policy and procedure in borrowing the item without consulting a more 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”, Mr Saunders found.

The company ‘should never’ have accused him of theft, Fair Work found. Picture: Brendan Radke

“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.”

Mr 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,” Mr 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.”

The commission ordered Sydney Tools to pay Mr Davidson four months wages, minus a 10 per cent discount on account of his “misconduct”.

“It does not warrant a higher discount because Sydney Tools did not suffer any financial loss as a consequence of Mr Davidson’s conduct,” Mr Saunders said, noting it was likely he would have been given permission to borrow the ladder if he had spoken to a manager.

“My view is that a remedy of compensation in the sum of $19,401.75 in favour of Mr Davidson is appropriate in the circumstances of this case.”