Criminal Conviction & Employment – What you need to know!

Criminal Conviction & Employment

KEY TAKE OUTS:

Case: Julian Strangio v Sydney Trains (2023)

• The Fair Work Commission (FWC) considered the issue of whether an employee’s failure to disclose their criminal charges, in breach of the employer’s Code of Conduct constituted a valid reason for dismissal.
• The employee in question did not disclose charges against him involving drugs, guns and alleged proceeds of crimes on the advice of his criminal lawyer.
• According to the Code of Conduct, employees charged with serious criminal offences must immediately notify their employer regardless of whether it is related to work.
• The employee’s length of employment, financial impact on his family and the availability of alternative short dismissal were insufficient mitigating factors to render the dismissal.
• A criminal conviction does not alone give rise to an automatic right to terminate employment.
• However, a conviction may impact an employee’s employment if it damages a business’s reputation if the offence is incompatible with the employee’s duties.
• Employees are not required to voluntarily disclose their criminal record unless specific legislation or rules apply.

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Employer’s Rights

An employer is entitled to terminate employment based on a criminal conviction, if:

• The nature of the offence is objectively serious and dangerous
• The offence affects the day-to-day duties of the company
• Impacts on the business’s reputation or a safety risk to other employees
• The offence is inconsistent with the employee’s duties

In Julian Strangio v Sydney Trains (2023) the conviction was a serious criminal matter. The employee was charged with 13 criminal offences and was convicted of having large amounts of cannabis in his possession. As the safety of Julian’s customers and colleagues relied on the exercise of trustworthy decision making, this conviction is incompatible to his role in Sydney trains.

Employee’s Rights

An employee’s termination of employment cannot alone be based on a criminal conviction. Like any other termination, it must follow correct and lawful procedures.

A lawful termination process should generally:

• Employees are treated in a fair and reasonable manner
• Have a valid reason for termination
• If required ensure the employee has adequate consultation with their employer about their dismissal
• If applicable recognise and include as part of the process any alternatives to dismissal

Unlawful Dismissal

Employers are unable to lawfully dismiss their employer for one or more of the following reasons:

• Protected attributes such as the employee’s race, colour, gender identity, intersex status, age, mental or physical disability, religion, or social origin
• Temporary absence from work due to illness or injury
• Being absent from work due to maternity leave or other parental leave
• Exercising or planning to exercise a workplace entitlement by making a complaint or inquiry in relation to their employment or participating in proceedings against the employer

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The Law

An employee may be unfairly dismissed if taking in all account relevant factors, the dismissal was harsh, unjust and unreasonable.  Section 385 of the Fair Work Act 2009 states that a person has been unfairly dismissed if the Fair Work Commission is satisfied that:

1. The person has been dismissed; and
2. The dismissal was harsh, unjust or unreasonable; and
3. The dismissal was not consistent with the Small Business Fair Dismissal Code; and
4. The dismissal was not a case of genuine redundancy.

What is considered as harsh, unjust and unreasonable?

The FWC will consider the following when deciding whether a dismissal is harsh, unjust or unreasonable:

• Whether there is a valid reason for the dismissal related to the capacity or conduct of the employee
• Whether the employer has notified the employee of that reason and given an opportunity for them to respond
• Dismissal is unreasonable if the employer did not allow the employee to have a support person present at the time of the discussions regarding dismissal.
• Whether the dismissal procedure followed by the employer was impacted by the size or lack of dedicated human resource management specialists, and
• Any other matters that FWC considers relevant.

What will the court consider?

A two-limbed test was established in John Pinawin t/a RoseVi.Hair.Face.Body v Edwin Domingo [2012] FWAFB 1359 states that an employer could summarily dismiss an employee if the:

1. Employer holds a belief that employee’s conduct was sufficiently serious to justify immediate dismissal.
2. Belief based on a reasonable ground with the assistance of a reasonable investigation.

This test was applied in James Deeth v Milly Hill Pty Ltd [2015] FWC 6422 and while the employee in question was a butcher’s assistant that was charged as an accessory to murder. FWC held that the employee’s decision to terminate his employment was a ‘knee-jerk reaction’ to the conviction and did not satisfy the second element of the Pinawin v Rose test. Therefore, stating that the conviction alone is not a valid reason to terminate Mr Deeth’s employment.

How can Coutts help?

As the rules of eligibility and criteria for considering unfair dismissal are complex and not every employee will be eligible to bring an unfair dismissal claim, we strongly recommend you talk to one of our experienced lawyers in the Coutts Employment team who are dedicated to getting you the best, and fairest, possible outcome.

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