The missing Milo mystery: Coles loses unfair dismissal case for sacking employee who took home chocolate drink powder

A Coles warehouse in South Australia has lost an unfair dismissal case, after it sacked an employee who took work-provided Milo home to create his own formula for consumption at work.

Employers are now being warned to ensure employee punishments fit the crime, or risk unfair dismissal cases.

Coles had provided Milo to its employees to drink during their breaks at its Edinburgh Parks distribution centre and the worker, Gary Homes, frequently took it home to make his own concoction, a mixture of chocolate, coffee and raw sugar, before bringing it back to work.

On August 30 last year Coles management was made aware Homes had been seen putting Milo into an empty container and then putting it in his bag.

When Homes left the workplace he was searched by a security guard who discovered the Milo. In shock, Homes told the security guard he’d bought the Milo or container from home, leading to Homes suspension and a follow-up investigation.

When interviewed less than two weeks later, Homes admitted the Milo had been from the lunchroom and he explained how he’d make his own drink mixture before consuming it at work.

Despite this explanation, he was dismissed following the meeting. Coles management said he had removed its property without authorisation, which was deemed to be “serious and wilful misconduct”.

Homes argued he had used the Milo in a way consistent with the company’s position that it was provided for employee use and there had been no restrictions on how employees could utilise or consume it.

He also said there was no deliberate attempt to mislead Coles and that he’d made no secret of taking some Milo home to mix up his own drink.

In defence Coles argued Homes had inappropriately used company resources and engaged in dishonest and misleading conduct by lying when approached by the security guard.

Fair Work Commission senior deputy president O’Callaghan found Homes was unfairly dismissed and ordered that he be reinstated and awarded him his lost remuneration for the full period of dismissal.

“I have concluded that he should not have taken the Milo home but I do not consider that his actions in doing so represented theft or inappropriate behaviour which could form a valid reason for termination of his employment, let alone summary dismissal,” O’Callaghan said in his judgement.

“Mr Homes did not have Coles’ management approval to take Milo home and had it not been for the evidence which clearly indicates that the Milo mix was to be used at work and that it was generally kept at work, I may have arrived at a different conclusion. As it is, the material before me clearly indicates that Mr Homes was using the Milo for the purpose for which it was intended.”

Senior associate with Holding Redlich, Joel Zyngier, told SmartCompany businesses need to ensure “the punishment is not disproportionate to the crime”.

“It’s unbelievable people get sacked for this kind of thing. Even if he took a few teaspoons home each day for two years the cost to Coles would have been insignificant,” he says.

“A summary dismissal was harsh and disproportionate in all circumstances. Coles is a big employer and it seems that it was a knee-jerk reaction. He should have been given a warning. Coles didn’t have a valid reason for the termination of his employment.”

Zyngier says employee’s dishonesty during the investigation process could be grounds for unfair dismissal, but the dismissal would still need to be proportionate to the act.

“The context needs to be taken into account. If someone’s said something wrong in the heat of the moment and then retracted it, it’s different to a deliberate attempt to mislead the company’s investigation.”

Workplace law expert Peter Vitale told SmartCompany employers are best to give employees warnings for conduct which isn’t specifically outlawed in the company’s policy.

“In this case there was a lack of specifics in Coles’ policy and a lack of evidence of dishonesty all added up to Coles not having a valid reason for dismissal,” he says.

“In cases like this where there is no specific policy about that sort of conduct then I think giving a warning about what the company considers acceptable and not acceptable behaviour, provided it’s a reasonable direction, might subsequently serve the basis for the termination should the instruction be ignored.”