Can I terminate an employee who has been charged with a criminal offence? Do the rules change if they are convicted?
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 Employment Law Team at Coleman Greig deals with these types of tricky questions on a daily basis via our fast, cost effective and personal advisory service called “Workplace Connect” which allows us to respond to any questions or discuss issues you are facing. Please contact: