Fired for Taking Three Bottles from the Bin: How One Employee Fought Back and Won

Jason didn’t think much of it at the time. It was an old esky, with mould and reeking from months of neglect after a Melbourne Cup event. But when he helped a colleague tip its contents into a dumpster—and salvaged some unopened bottles of liquor—his employer called it theft. Days later, he was out of a job.

The Fair Work Commission saw it differently.

This case shines a spotlight on what can happen when an employer jumps to conclusions without a fair investigation. It also exposes how the Small Business Fair Dismissal Code, which gives smaller employers more flexibility, is often misunderstood—and misused.

Jason had worked with the business since 2013. He was a senior manager earning a six-figure salary. But despite years of service, the dismissal process was swift and unforgiving. A letter from the employer’s lawyers suspended him for "theft" and invited a response. The tone made it clear: the decision was already made. Even the so-called “show cause” letter demanded the return of company property before any explanation was considered.

The allegation? That Jason had stolen three bottles of alcohol which had been sitting in a filthy esky for months—bottles the company had already instructed to be thrown out.

The Commission didn’t accept that Jason had engaged in theft. Nor did it accept the employer’s claim that the dismissal complied with the Small Business Fair Dismissal Code.

Yes, the bottles were taken. But the Commission found Jason acted openly, in full view of his colleague. The alcohol was retrieved from a dumpster, after the general manager had authorised the contents to be discarded. There was no secrecy, no attempt to deceive. In fact, the Commission said the idea of calling this "theft" was so overblown it bordered on malicious.

As Deputy President Sams put it: “There can hardly be a more serious allegation against an employee than theft… serious allegations of this kind, amounting to criminal activity, should not be thrown around like confetti.”

The employer failed on multiple fronts:

• There was no reasonable investigation.

• Witness statements were not shown to Jason.

• The decision to dismiss was made before Jason had a chance to respond.

• No police report was ever properly substantiated, despite claims to the contrary.

Even the employer’s reliance on past disciplinary issues didn’t hold up. They had never been acted on at the time—and appeared to be dredged up only to smear Jason's reputation after the fact.

The case shows how some small businesses may misuse the Small Business Fair Dismissal Code to sidestep their obligations. But as this decision confirms, even small employers must act fairly, investigate properly, and base their decisions on evidence—not gut feelings or grudges.

Jason’s real mistake was assuming he didn’t need permission to take the bottles. In hindsight, he said he should have asked. But the Commission ruled his actions weren’t dishonest or deceptive. They weren’t theft. And they certainly didn’t justify being fired without notice.

The Commission ordered Jason’s reinstatement, full back pay, and recognised his continuous service had never legally been broken. Despite the employer’s claims that the employment relationship had broken down, the Commission rejected that too—stating that the employer's loss of trust was irrational and not genuinely held.

This wasn’t just a win on paper. It was a full vindication of Jason’s honesty, his integrity, and his right to fair treatment.

Key Takeaways for Employees

• “Theft” isn’t just what your boss says it is. Serious allegations require serious evidence—and employers must investigate fairly.

• Being a manager doesn't remove your unfair dismissal rights. The Commission made clear that position titles don’t change your legal protections.

• Small businesses can’t hide behind the Code. Even under the Small Business Fair Dismissal Code, employers must show that they held a reasonable belief based on reasonable grounds.

• A bad process can make a dismissal unfair. If an employer makes up their mind before hearing your side of the story, that’s not procedural fairness.