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Deliberate peanut contamination justifies dismissal

Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 97, 7 February 2006

When a manufacturing company discovered peanuts in the end product of its liquorice production line, 750 kilograms of liquorice had to be destroyed. The company undertook an investigation, determined that a particular production worker had deliberately placed peanuts in the mix and summarily dismissed the production worker. The production worker unsuccessfully challenged the fairness of her dismissal in a claim in the Federal Commission (Barrett and Fyna Foods (Vic) Pty Ltd, PR966476, 13 December 2005).

Although the production worker vehemently denied that she had put peanuts in the liquorice mix, the Commission determined, on the balance of probabilities, that she had placed peanuts in the extruder of the liquorice machine.

Several factors were relevant to the Commission’s decision. The video evidence produced by the company was hazy but it showed the production worker reaching toward the inlet to the extruder to the liquorice machine. The timing of this action was consistent with the timing of the discovery of the contamination (which was about 5 minutes after peanuts being placed in the extruder, according to an experiment conducted by an employee about 6 months after the dismissal).

Further, the video evidence showed the production worker and one other person were the only people in the area when the contamination occurred. The other person did not carry out any action which could be regarded as suspicious.  Although the production worker had 14 years service and no adverse reports against her during that time, the Commission determined that summary dismissal was not disproportionate to the conduct and the claim was dismissed.

HR Tips

• Employers should consider all evidence that may be persuasive in defending an unfair dismissal claim even though such evidence was not available at the time of the dismissal
• To ensure video evidence can be relied upon in proceedings, employers should ensure that prior to installing cameras in the workplace, they have taken steps to comply with the requirements in the Workplace Surveillance Act 2005 (NSW).
  

Lucinda Frantz
Senior Associate
Australian Business Lawyers