This case is a timely reminder that in order to rely on video
footage it must be conclusive. It is simply not enough to have
something on camera that is unclear.
In Mulhall v Direct Freight (Qld) Pty Ltd  FWC 58
the FWC held that an employer's decision to sack a truck driver
for serious misconduct was based on "flimsy" evidence and
ordered the employer to pay over $25,000 in compensation to the
The truck driver was alleged to have stolen a package containing
a laptop computer which should have been delivered to Harvey Norman
in March 2015.
The employer relied upon CCTV footage to come to the conclusion
that the driver stole the package. However, despite the
driver's requests to view the footage, it was not shown to him
at either disciplinary meeting.
The driver submitted that the only fair way for the employer to
conduct its investigation was to have played him the footage. The
employer stated that they intended to play the footage at the next
meeting but the driver did not attend.
The driver claimed he was unable to attend the next meeting due
to feelings of anxiety and stress for which he provided a medical
certificate. However, despite this, the employer sent a letter to
the driver advising him of his dismissal.
Commissioner Simpson accepted the driver's submission that
the evidence was "flimsy" and found that the employer had
been unable to discharge its onus to satisfy the Commission on the
balance of probability that the driver had actually engaged in the
In the two videos relied upon by the employer, two different
boxes were identified as the stolen package by separate witnesses.
There was also "considerable distance between the position of
the camera and the [driver]" in one video which undermined the
reliability of the employer's claimsas to the manner in which
the driver behaved. There was therefore no clear evidence to prove
that the driver stole the package.
It was also found that the driver was denied procedural fairness
as he was not afforded the opportunity to view the footage upon
which the employer relied and make a response before he was
Commissioner Simpson held the dismissal to be unjust and
unreasonable and found that a payment for compensation was
reasonable in all of the circumstances. He ordered the employer to
pay the truck driver $25,468.13 gross.
This case highlights the importance of reliable evidence and
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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