Accusing an employee of theft is one of the most serious steps an employer can take.
It is the kind of allegation that almost always leads to summary dismissal.
But what happens when the evidence does not stack up?
A decision of the Fair Work Commission provides a clear answer and a costly reminder for employers who move too quickly. In this case 22 weeks worth of costly reminders.
The case of Cheryl Sazdanoff v Doc Pty Limited [2026] FWC 1128 (2 April 2026) goes beyond just alleged theft. It is about evidence, process and the risks of making assumptions.
The Background
The employee had been employed for more than 14 years as a pharmacy assistant.
There were no prior issues with performance or conduct.
That changed abruptly when she was called into a private area at work and told:
“We’ve caught you stealing.”
The allegation was that she had taken and consumed confectionery items on several occasions without paying.
The employer relied heavily on CCTV footage to support that claim.
She was invited to a meeting the following day.
Her employment was terminated at that meeting for serious misconduct.
The Evidence Problem
At first glance, this appears to be a straightforward case.
There was CCTV footage showing the employee:
- Taking items from shelves
- Eating or sharing them during shifts
- Not always paying immediately
However, the Commission did not accept that this amounted to theft.
The key issue was not whether the conduct occurred.
It was whether the conduct demonstrated an intention not to pay.
That distinction proved decisive.
Conduct vs Intention
To establish theft, it is not enough to show that an employee took or consumed items.
The employer must establish that the employee intended not to pay for them.
The Commission found that this had not been proven.
In particular:
- The employee consumed items openly, without attempting to conceal her conduct
- One item was paid for later that same day
- Other items were shared among staff
- There was evidence of a workplace practice of consuming items and paying later, potentially more usual conduct in the workplace.
This meant the conduct could not be characterised as dishonest.
And without dishonesty, the allegation of theft could not be sustained.
There was potentially an argument that the employer could have put previously that there was a breach of policy and process but this was not put forward originally as the reason for dismissal and there was evidence of usual workplace practice where consuming items and paying later occurred.
The Role of Workplace Practice
One of the most important aspects of this decision was the role of workplace culture.
The employee gave evidence that it was common practice for staff to consume items during shifts and pay for them later.
The employer asserted that the policy required payment before consumption.
However, there was no clear evidence that this policy was consistently enforced.
The Commission accepted that the “pay later” practice was known and tolerated.
This significantly undermined the employer’s case.
Because once a practice like that becomes embedded, it becomes far more difficult to establish that an employee acted dishonestly.
Why the CCTV Was Not Enough
The employer relied heavily on CCTV footage and invited the Commission to draw its own conclusions.
That approach did not succeed.
The Commission found that:
- The footage did not establish intention
- The evidence was equivocal
- The employee’s explanations were credible
This is a critical point for employers.
CCTV can show what happened.
It does not necessarily explain why it happened.
Procedural Fairness Issues
Even if there had been concerns about misconduct, the process followed by the employer was problematic.
The Commission identified several issues:
- The CCTV footage was not properly shown to the employee
- The employee was distressed and overwhelmed when asked to respond
- The process moved quickly from allegation to dismissal
- There was no meaningful opportunity to respond
These deficiencies reinforced the conclusion that the dismissal was unfair.
Inconsistent Treatment
The evidence also showed that other employees had engaged in similar conduct.
Most were issued warnings.
One other employee was dismissed.
However, the applicant was summarily dismissed.
The Commission found that she had been treated more harshly than her co-workers without clear justification and without consideration of her 14 years of service.
Consistency is a key consideration in disciplinary processes.
Where it is lacking, the fairness of the dismissal is often called into question.
The Outcome
The Commission found that:
- There was no valid reason for dismissal
- The dismissal was harsh, unjust and unreasonable
Reinstatement was not ordered.
Instead, compensation was awarded.
The employee received:
$23,960.86 plus superannuation
This represented approximately 22 weeks’ pay.
Key Lessons for Employers and HR
This decision provides several important lessons.
- Proving misconduct requires more than suspicion
If you are alleging serious misconduct such as theft, you must be able to prove intention. It might be best in most circumstances to have the matter investigated to provide more clarity around facts and evidence.
- CCTV is not determinative
Footage can support a case, but it rarely proves the full picture on its own.
- Workplace practices matter
If certain behaviours are tolerated in practice, this will undermine reliance on formal policies.
- Procedural fairness remains critical
Even where concerns exist, a flawed process can render a dismissal unfair.
- Consistency is essential
Different outcomes for similar conduct must be justified.
- Take care with summary dismissal
Summary dismissal should only occur where there is clear, defensible evidence of serious misconduct.
Final Thoughts
Employers often act on what appears to be clear evidence, only to find that it does not meet the legal threshold required. This is particularly flawed in unfair dismissal matters and general protections matters.
As this decision demonstrates:
The strength of your belief is not enough. The strength of your evidence is what matters.
👉 If you want to sense-check your investigation or disciplinary process before making a call, that is exactly what our Employment Law Health Check is designed to do.
You can check this out here.
Also 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.
