Misconduct Without Proof- Why Guesswork Isn’t Enough

It’s not uncommon for employees to be accused of theft or serious misconduct at work. But suspicion isn’t proof, and dismissal based on vague assumptions can quickly fall apart if challenged. That’s exactly what happened in an infamous unfair dismissal case.

The two employees were sacked for allegedly stealing alcohol. The employer took the view that the beverages had been improperly removed and concluded the conduct warranted immediate dismissal for serious misconduct. But when the case went before the Australian Industrial Relations Commission, the Commission wasn’t convinced.

The employer didn’t have solid evidence. There was no CCTV footage. No eyewitness account. No admission. Just a belief—one shaped by internal assumptions and loosely drawn inferences. And that wasn’t enough.

The Commission emphasised a crucial point: where the alleged misconduct amounts to a criminal offence—like theft—then the employer must have something more than “mere conjecture, guesswork or surmise” to justify dismissal. That standard wasn’t met here. The evidence, at best, was incomplete. At worst, it was speculative. The result? The dismissals were found to be unfair.

What Employees Can Learn from This

1. You Still Have Rights When Accused
   Being accused of theft or serious misconduct doesn’t automatically strip you of legal protection. Employers must investigate properly and act on facts, not gut feelings.

2. Dismissal Requires Evidence, Not Assumptions
   Just because an allegation involves potential dishonesty doesn’t mean dismissal is automatically valid. The employer needs to show that the decision was “sound, defensible or well-founded.” If the case lacks substance, the dismissal won’t hold.

3. Procedural Fairness Is Crucial
   Even in cases involving alleged theft, employers must give employees a chance to respond. If that step is skipped or rushed, it can tip the balance toward an unfair finding—regardless of the seriousness of the accusation.

4. A History of Good Conduct Matters
   Though not central in this particular case, an employee’s prior record can influence the Commission’s decision. Longstanding service, no prior issues, and a clean disciplinary history all weigh in the employee’s favour.

The bottom line? Being accused of serious misconduct is a high-stakes moment. But the rules still apply. You have a right to a fair process, and your employer must prove their case—not just assume it.

If you’ve been dismissed under similar circumstances, the law might still be on your side. A rushed or poorly supported decision can be just as unfair as a baseless accusation.