From time to time, a client presents me with a scenario which
involves careful consideration of the impact of the alleged actions
of an employee in their personal time on the workplace, and what
action if any, my client, the employer, can take.
Let me explain... Have you ever had an employee that has been
charged with speeding? Drink driving? Assault? Domestic violence?
Or even murder?
In those circumstances have you been unsure of what, if any
action, you as the employer can/should take?
This sort of situation is often tricky to navigate but generally
speaking it's important to:
Consider whether the alleged offence directly impacts on the
employee's performance of the role you have actually employed
them to perform. By way of example, if an employee is a truck
driver who is charged and then convicted of a speeding offence
which leads to their licence being disqualified for a specified
period – that employee, in light of the disqualification, is
now unable to fulfil the inherent requirements of his/her role.
Accordingly, an employer in those circumstances has legitimate
grounds to bring about the end of his/her employment. If however,
the employee has an office role – the disqualification of
his/her licence should have no real impact on the performance of
his/her role and therefore would ordinarily not provide a valid
basis for terminating employment.
Acknowledge the difference between a person who has been
"charged" with an offence and a person who has been
"convicted" of an offence. If a person has been charged,
they haven't had an opportunity to appear in court and defend
their position. Further, a person can be charged but ultimately not
convicted so any attempt to take action against an employee in
those circumstances, for example, terminating their employment,
could be viewed as premature and therefore unreasonable.
An unfair dismissal case, Death v Milly Hill Pty Ltd  FWC
6422, dealt with this issue. In that case the employee was an
apprentice butcher who was dismissed by his employer after being
charged with being an accessory after the fact to murder.
The employer claimed that:
Other employees would resign if they were required to work with
the employee and that the customers would boycott the store
The dismissal was consistent with the Small Business Fair
Dismissal Code (relevant to small business with less than 15
employees) because the employee had engaged in conduct causing
serious and imminent risk to the reputation, viability or
profitability of the business.
The Commission held that:
The dismissal wasn't consistent with the Code, no
reasonable investigation was conducted by the employer, and that
there should be no presumption that a criminal conviction (or the
possibility thereof) alone is a valid reason for termination
In the circumstances, that is, given the shop's location (a
small country town) and the fact that the employee was the only
named offender in the media, there was in fact a valid reason for
the dismissal. However, the process of the dismissal was deficient
and the employee was not afforded procedural fairness –
accordingly the dismissal was unfair and the employer was ordered
provide compensation to the tune of six weeks wages.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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