Support worker accused of theft wins unfair dismissal case

An appeal from the former employer of a disability support worker, who was terminated from her job role after it was alleged that she committed acts of bullying, theft, and trespassing, has been refused.

Accusations of criminal acts were lodged by Evolving Support Services, which claimed that its former employee, Petra Molokac, engaged in acts of bullying, theft, and trespassing, which resulted in the termination of her employment with the company.

Bullying accusations

Molokac commenced employment with Evolving Support Services on 22 May 2023 as a disability support worker. As a support worker, a weekly timetable with a recurring client is the usual procedure, yet on 13 March 2024, Molokac was subsequently transferred from working with her regular client.

The reasoning behind this revolved around an incident that occurred back in February, where Molokac posted a message to a team WhatsApp group calling staff “useless”. The message was quickly deleted; however, screenshots of the original message were made by her colleagues.

Molokac owned up to the message and apologised to the colleague who felt targeted by it. Fast-forward to March, after reviewing the message, Evolving deemed it as an act of bullying and therefore adjusted Molokac’s timetable.

‘Theft and trespassing’

On 14 March 2024, Molokac provided her employer with a medical certificate indicating that she was not fit to work until 18 March. Molokac, however, was served with a letter of termination on 15 March 2024, which stated that her employment was being terminated due to serious misconduct.

The company alleged that Molokac had entered the house where she performed work when she was not rostered for a shift. It was claimed that she entered the premises without permission from Evolving and removed items that did not belong to her, thus engaging in theft. The police were notified.

However, after an investigation, it was found that the items removed from the premises did, in fact, belong to Molokac and not Evolving. The commissioner noted that the claims and acquisitions “reflected poorly” on Evolving, as when it was challenged on its evidence, it folded.

“It [Evolving] had accused Molokac of theft, but when it came to the point of those allegations being tested, the respondent made very little attempt to substantiate these serious allegations,” the commissioner said.

The conclusion was that Molokac did not engage in criminal trespass or theft, with the commissioner stating that it was clear the reason for Molokac visiting the property was merely to collect her possessions and to return the garage remote control.

Unfair dismissal

The commissioner revealed that Molokac had the consent of Evolving to visit the property to perform her duties for the 10-month period up to 14 March 2024; therefore, despite the strong acquisitions, these baseless claims were not valid reasons to terminate Molokac’s employment.

Not only was the termination not unjustified, but the commissioner found that it was harsh, unjust, and unreasonable and put Molokac through distress.

The commissioner was satisfied it amounted to unfair dismissal and ordered Evolving to pay $14,400 plus superannuation, representing six weeks of remuneration.

Appeal for a stay

Evolving wanted a stay of this decision, but FWC vice president Mark Gibian found numerous issues with how Evolving went about the process, starting with the fact that Evolving failed to seek a stay within the time frame.

Instead, Evolving did not seek a stay until after the time for the compliance with the order had expired, which is also against the granting of a stay. One of the company directors, referred to in the judgment as Ms Donnelly, claimed she was overseas and was trying to get assistance from solicitors, who, in a stroke of irony, she claimed were “useless.”

Gibian also explained that due to Evolving’s employee numbers (75), it shouldn’t face financial hardship after making the payment to Molokac. Considering those aspects, Gibian ordered that the application for a stay be refused.