Cleaner wins reinstatement after 20-year career derailed by ‘unclear’ theft allegation

A cleaner with 20 years of service for his employer was found to have been unfairly dismissed based on allegations of stealing a handbag.

Working for over 20 years as a cleaner at Transport Canberra and City Services Directorate, Mohamed Shehata was subsequently dismissed from his long-serving role on allegations that he misappropriated a bag and its contents that had been left on a bus he was cleaning.

During an overtime shift at 7pm, of which Shehata had begun at 5am that morning, a colleague of Shehata claimed that he was seen exiting one of the buses at the depot holding a pink bag – walking directly to his car.

CCTV footage observed by TCCS staff after being alerted of the potential misconduct showed him holding the pink bag while exiting the pink bus. Shehata was presented with images of this segment of the footage, and after an internal investigation, it was found that “on the balance of probabilities”, that he misappropriated it, resulting in his dismissal.

The pink bag was never located, and no record existed of it being logged in the depot’s lost property system.

As the investigation progressed, Shehata denied all wrongdoing, explaining that he did, in fact, place the pink bag in the “low-value lost property bin”.

He explained that the CCTV images captured of him exiting the bus holding the pink bag were due to him receiving a stressful hospital call about his disabled son, triggering reflux symptoms. Shehata rushed to his vehicle for medication, then proceeded to place the bag in the property bin.

Shehata acknowledged that there may have been a more logical approach to the situation, but referenced that he was on an overtime shift that began at 5:00am that morning and was in the midst of receiving an extremely distressing phone call.

In his defence, Shehata also acknowledged that he and the colleague who originally reported him exiting the bus with the pink bag “did not get along”, citing previous allegations of prejudiced remarks made by the colleague in regards to his “Muslim background”.

For deputy president Lyndall Dean, who oversaw Shehata’s unfair dismissal application, the evidence presented by Shehata’s former supervisor of 18 years offered context to how the situation unfolded.

According to the supervisor, the low-value lost property tray was placed outside the office, and the more important lost property items were placed inside the office. The low-value lost property resided overnight and subsequently cleared in the morning.

The supervisor gave evidence that in the 18 years he supervised Shehata, he did not have any issues with his conduct or performance and clarified that the only time he took leave was to attend to issues pertaining to his son, who was “badly disabled and sometimes hospitalised”.

On top of that, Shehata had previously handed in $800 in cash, phones, and wallets that he had found on buses.

In her consideration, Dean noted that the CCTV footage was heavily relied on for Shehata’s dismissal, claiming that it “fails” to display the misconduct that the employer asserts.

“It is unclear and of poor quality, and as a result, I cannot find that [Shehata] either took the bag, or that he did not place it in the lost property bin as he asserts.

“The CCTV footage was certainly not ‘compelling’, as asserted by the [employer], and I am satisfied that it would amount to unsafe conjecture to make a finding that [Shehata] misappropriated the bag based on the footage,” Dean said.

According to Dean, all other angles of the alleged misconduct from the surrounding CCTV footage were “deleted and unrecoverable”, which she labelled as “unfortunate”.

Dean also questioned the credibility of Shehata’s colleague who made the original allegation, citing their strained relationship and his lack of attendance at the hearings.

“Having considered all the evidence, I find it more probable than not that [Shehata] did what he said he did. In summary, that is: he found the bag, was distressed by a phone call he then received about his son being in hospital, the stress of which triggered reflux symptoms, and he went to his nearby car with the bag to get his reflux drink.

“He then returned and placed the bag in the lost property tray,” Dean said.

Dean concluded that Shehata was, in fact, unfairly dismissed and ordered his employer to reinstate and reimburse him from the date of his dismissal while also maintaining the continuity of his employment.