Australia: Employer must follow fair process even when employee commits heinous crime

Last Updated: 28 October 2016
Article by Murray Thornhill

Appearing in the Fair Work Commission via telephone from his prison cell late last month, a Victorian man complained of unfair treatment because he was sacked after pleading guilty to paedophilia. Perhaps unsurprisingly, the summary dismissal was held to have been fair and the case was dismissed. However, what may surprise some is that the dismissal was not held to be fair because the child sex crime was so heinous but because the employee's conviction received media coverage that destroyed any hope of the employee continuing his duties without causing damage to the employer's business. The FWC took the time to explain that criminal conduct outside of work hours does not automatically give rise to valid reason for dismissal, and criticised the employer for failing to provide procedural fairness to the employee. Vice President Hatcher decided in Joseph Wakim v Bluestar Global Logistics [2016] FWC 6992 that no compensation was warranted because even if proper procedure had been followed the summary dismissal was unavoidable and so the employee was no worse off.

When does criminal conduct warrant dismissal?

Out of hours conduct – including criminal conduct - can only form a valid reason for dismissal in very limited circumstances. The conduct has to be so serious as to amount to a rejection of the employment contract by the employee because it:

  • damages the employer's interests;
  • causes serious damage to the relationship between the employer and employee, or
  • is incompatible with the employee's duty as an employee.

Employment Untenable

Mr Joseph Wakim was a public figure known for his work promoting multiculturalism and working with troubled youth. When he pleaded guilty to indecently dealing with a child under 16 on 1 April this year it drew immediate media attention in the Herald Sun. Vice President Hatcher summarised the relevant media coverage as follows:

"The story's headline was "Former Victorian Multicultural Affairs Commissioner Joseph Wakim guilty of child sex offence", and featured a large photograph of him. He was described elsewhere in the story as founder of the Australian Arabic Council and a "prolific social commentator", and as being employed in a "senior position with a logistics company". It described him as having been charged with three offences involving a young boy including grooming, but that two of the charges were withdrawn and he had pleaded guilty to the charge of sexual penetration."

The media attention in this case was what gave legitimacy to the employer's decision to summarily dismiss Mr Wakim. Had the conviction not been widely known about and publicised then the reputation and viability of the business would not have been at risk. The FWC found:

"the public disclosure of Mr Wakim's offence rendered his continued employment untenable."

The Commission considered Mr Wakim's argument that he could have been given alternative duties that did not require him to interact with clients, however the Commission noted that it was not only clients but other employees who would seek to distance themselves from interactions with a child sex offender. The situation amounted to repudiation of the employment contract giving rise to this following valid reason for his dismissal:

"Mr Wakim's criminal conduct had the effect of irreparably damaging relationships with clients and other staff and rendered his continued employment untenable"

Employer's Failure to Seek Advice

It was not all clear sailing for the employer before the FWC however. Vice President Hatcher criticised the employer for failing to put the allegations to the employee and give him an opportunity to respond. The Commissioner found that this failure amounted to a breach of procedural fairness, and went on to say:

"Although Bluestar is not a small business, it did not have any dedicated human resource management specialists or expertise in the business at the time of the dismissal. It is clear that this affected the procedures it adopted in dismissing Mr Wakim. However Bluestar's size meant, in my view, that it could and should have obtained external advice as to how to afford procedural fairness before deciding to summarily dismiss Mr Wakim."

If the criminal offence for which Mr Wakim was sacked had not been paedophilia it is possible that the employer's failure to seek advice about what a fair process would constitute - when it had the capacity and resources to obtain such advice - may have been sufficient for the FWC to find that the dismissal was unfair. Employers should beware that even where very serious misconduct is discovered, procedural fairness is essential. The FWC may find that if proper process had been followed the employee may have had the opportunity to continue in paid employment for longer or even have managed to provide an explanation or undertaking that could have avoided the need for dismissal altogether. Where this the case the employee will be entitled to compensation at the expense of the employer, or perhaps even reinstatement.

Mr Wakim had already been on paid suspension for an entire month before he was dismissed on 4 May 2016. Interestingly, the Fair Work Commission did not take this period of paid suspension into account when assessing the procedural fairness of the dismissal process. If the employer had sought and received sound legal advice immediately upon reading about Mr Wakim's offending in the news Mr Wakim could have been fairly dismissed almost month earlier saving thousands in salary and superannuation that was effectively unnecessarily paid.

For the employer in this case however the gravity of the paedophilia conviction overshadowed the deficiencies in procedure and Vice President Thatcher found the dismissal was fair and reasonable.

"Had Mr Wakim been afforded procedural fairness, I do not consider that there is any reasonable possibility that he could have advanced any response which might have altered the outcome. His commission of the offence was an admitted fact and the consequences for his employment once his offence was publicised were obvious and unavoidable."

Tips for Employers

  • Consider including a clause in your employment contracts about standards of behaviour outside of work and/or a requirement to disclose immediately any criminal charges levied during employment.
  • Do not assume that serious criminal conduct necessarily forms a valid reason for dismissal.
  • Always provide an opportunity for employees to hear and respond to any reason for dismissal.
  • Seek legal advice early to ensure:
    • you pay no more in salary or entitlements than necessary prior to dismissal,
    • your decision cannot be found to be unfair, and
    • you cannot be ordered to pay compensation.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Murray Thornhill
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.