Criminal prosecution equals dismissal?

What a weird world it is? Usually, the dismissal of an employee for a criminal record is a breach of Federal anti-discrimination law, unless the criminal conduct affects an employee’s capacity to carry out the inherent requirements of their job.

In the unfair dismissal regime in Australia, a criminal record or, more importantly, a criminal allegation relating to conduct outside of the workplace, would not easily be the basis for a valid dismissal. Courts and Tribunals are inclined to ask the question: “How does someone’s external conduct undermine their capacity to do a job they were doing fine before?”

That was until now. In the recent decision of Leigh v Uncle Tobys an employee was found guilty of several sex-related offences. During the time of the appeal his access to the factory was terminated and he was taken off the roster. In effect, he was dismissed.

Senior Deputy President Drake held [41]:

“The convictions relate to conduct of a sexual nature of a particularly offensive kind towards females, and this workplace has a significant female base. Mr Wilson [Leigh] is not a person of good character in this regard. In deciding this matter I have weighed gender balance of the workplace, Mr Wilson’s established lack of good character arising from his conviction and Uncle Tobys obligation to provide a safe workplace for its employees as far as it is able to do so. Mr Wilson’s convictions are a valid reason for the termination of his employment.”

It is an interesting suggestion that because some of the convictions related to women – the presence of women on the worksite created a safety risk. As the allegations were never put to Mr Wilson nor was there any opportunity to determine the truth of that risk it is difficult to see how the convictions alone created a risk to the safety of employees.

Ultimately, the case turned on the issue of procedural fairness and Senior Deputy President Drake held [48] that Mr Wilson was “entitled to an opportunity to consider and respond to Uncle Tobys grounds of concern regarding his continuing employment even if, in the end, Uncle Tobys was not likely to be persuaded.”

Putting aside the issue in respect to procedural fairness, if a criminal offence involving women is a valid reason for termination within the circumstances outlined above, how should we address the following questions?

1. What about the safety of people’s property upon a site where an employee is charged with a dishonesty offence?

2. Is it safe to use a work car park if another employee who uses the car park is charged with drink driving or reckless driving?

3. Is it safe for men to work on-site with an employee who has been charged with assault of another man?

The list goes on!

This case is unlikely to be appealed as ultimately the Court held that the dismissal was harsh, unjust and unreasonable on the basis that Mr Wilson was not afforded procedural fairness.

But the underlying principle in regard to what is “valid” dismissal is concerning and stretches the law beyond where it was before.

Andrew Douglas is the Managing Director of Douglas LPT, an integrated legal, HR, recruiting and training business. He is the Editor-in-Chief of the loose leaf publication, The OHS Handbook, and writes on workplace law issues such as Industrial Relations, Employment law, OHS, Equal Opportunity, Privacy, Surveillance and Workers Compensation. He is the principal of the legal division of Douglas LPT and appears in courts, tribunals and Commissions throughout Australia.