It started with a pink bag on a bus and ended with an unfair dismissal claim.
A cleaner with over two decades of experience without incident, was carrying out his normal duties, only to be accused of misappropriating lost property.
His reinstatement order by the Fair Work Commission highlights what every HR team should know: one rushed investigation, poor evidence and non-credible witnesses alongside unblemished service will put a business at risk.
Mohamed Shehata v Australian Capital Territory (Represented by Transport Canberra and City Services Directorate) [2025] FWC 2133 (23 July 2025)
The recent case of Shehata v Australian Capital Territory (Transport Canberra and City Services Directorate) highlights the risks for employers when misconduct investigations are:
- not conducted with rigour and fairness;
- relying upon poor evidence;
- relying upon bias witnesses;
- not taking into account other circumstances such as medical issues or personal issues of the employee.
Case Background
Mohamed Shehata, a cleaner with over 20 years of unblemished service, was dismissed after allegations that he misappropriated a pink bag left on a bus he was cleaning.
A colleague claimed to have seen him exiting a bus with the bag and walking directly to his car. CCTV footage was used to support this claim, and Shehata was dismissed on the “balance of probabilities” that he had taken it.
However, Shehata denied the allegation. He explained that he had placed the bag in the depot’s “low-value lost property bin,” and that he had briefly taken it to his car while experiencing reflux after a stressful call about his disabled son’s hospitalisation. He also noted past tensions with the colleague who made the allegation.
Shehata’s (former) supervisor of 18 years gave evidence of his honesty and reliability, noting that he had previously returned lost items including cash, phones, and wallets.
The Fair Work Commission’s Findings
The Fair Work Commission held that the dismissal was harsh, unjust and unreasonable:
- The CCTV relied upon was of poor quality and inconclusive, failing to prove misconduct.
- Other footage that might have clarified events was deleted and unrecoverable, undermining the employer’s case.
- Evidence suggested Shehata had a consistent history of integrity in handling lost property.
- The complainant’s credibility was in doubt due to prior conflict with Shehata and absence from hearings.
Deputy President Dean concluded that Shehata had been unfairly dismissed, ordered his reinstatement to his former position, and directed the employer to pay him lost wages.
Key Takeaways for HR Managers and HR Teams
This case underscores the importance of fair process and robust evidence in workplace investigations:
- Quality of Evidence Matters
- CCTV or digital evidence must be clear, complete, and preserved. Partial or poor-quality footage is unlikely to meet the required standard.
- Credibility of Witnesses
- Allegations from colleagues with strained relationships should be treated cautiously and corroborated with objective evidence.
- Consider Employee Record
- A long-serving employee with a strong record of honesty should not be dismissed without compelling proof. Past conduct provides critical context.
- Investigative Rigor
- Employers must ensure all relevant evidence is collected, preserved, and reviewed before making a decision. Deleting or overlooking evidence can be fatal to the employer’s case.
- Proportional Response
- Even if concerns exist, dismissal should only follow when misconduct is proven. Alternatives (such as further investigation or warnings) should be considered.
Why This Matters for HR
In Shehata’s case, the Commission’s decision shows that without clear and reliable evidence, even serious allegations will not justify termination.
The Fair Work Commission continue to reiterate this view.
HR teams must therefore ensure that investigations are evidence-based, procedurally fair, and consider the whole context including the employee’s service history and mitigating circumstances.
Our Employment Lawyers at South Geldard Lawyers have essential expertise in advising on dismissal matters including unfair dismissal claims and general protections claims to protect HR teams and Employers.
Feel free to reach out on 07 4936 9100 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au. All Employers receive an obligation-free consultation.
