Is a person’s criminal conduct outside of work, a valid reason to have their employment terminated
Workplaces are meant to be safe and productive environments where employees can focus on their duties without having to worry about their safety or well-being.
But what happens if an employer discovers an employee’s criminal conduct outside of work? Can that employee be dismissed?
One of the legal principles of employment law in Victoria is that of “unfair dismissal.” This principle is codified in the Fair Work Act 2009 (Cth), which sets out the minimum entitlements of employees and the obligations of employers in relation to employment matters.
Under the Fair Work Act, an employer may terminate an employee’s employment for a valid reason. However, the termination must not be harsh, unjust or unreasonable. This means that an employer must follow a fair process when terminating someone’s employment and must not discriminate against the employee based on certain protected attributes, such as their race, sex, or criminal record.
When it comes to an employee’s criminal behaviour, employers may have a valid reason for terminating their employment, and there needs to be a link between the conduct and their employment. For instance, an employee who has engaged in theft or fraud may have breached their employment contract or violated the employer’s code of conduct. It should always be assessed on a case by case basis.
In Hussein v Westpac Banking corporation (1995) 59 IR 103, a bank employee had their employment terminated following a conviction of credit card fraud against a relative. While the fraud was unrelated to their employment, it was held that Westpac had a valid reason to terminate their employment as his offence was sufficiently serious, Westpac could not trust them as an employee and his poor reputation could affect the banks reputation.
The process of terminating an employee’s employment for criminal behaviour in the workplace typically involves investigating the alleged misconduct and providing the employee with notice of the termination of their employment. It is also important to consider any mitigating factors, such as the employee’s length of service or previous performance.
In Deeth v Milly Hill Pty Ltd [2015] FWC 6422, an apprentice butcher was charged with accessory to murder after the fact. This happened in a small town, where the crime was well known. Once his employer found out, he was immediately dismissed, and the employee then made an application for unfair dismissal. The Fair Work Commission held that the reason for dismissal was valid as a connection existed between his offending and his employment, being that he was charged with a serious offence and other staff and customers would be concerned about him continuing his work in the shop. However, it was still found to be harsh and unfair against the employee as he had not been given notice or an opportunity to respond to allegations.
Ultimately, while it may seem unfair at first glance that an employer can get punished for dismissing an employee implicated in a murder, our unfair dismissal system tries to strike a tricky balance between employee and employer protections.
As always in law, everything should be analysed on a case-by-case basis and employers should take care to consider these serious decisions.
