Gym employee arrested for allegedly selling prescription meds has unfair dismissal case dismissed

An employee of an Anytime Fitness gym in Adelaide who lost his job after being arrested for allegedly possessing steroids and selling prescription drugs has had his unfair dismissal case rejected by the Fair Work Commission.

The employee commenced work as a gym manager at Anytime Fitness Parafield on April 30 and held the position until June 17. He filed an application for an unfair dismissal remedy the day after.

The franchise terminated his contract following an incident on June 4 that saw police arrest the employee while at the gym and in front of members and staff.

According to the Fair Work Commission, the employee was charged with unlawfully being in possession of steroids, prescription drugs and for allegations surrounding money laundering.

Anytime Fitness Parafield objected to the unfair dismissal application, saying the employee had not completed the minimum employment period and was dismissed in accordance with the Small Business Fair Dismissal Code.

In order to claim unfair dismissal before the commission, workers must have been employed for either 12 months if the employer is a small business or six months for larger businesses.

In reaching his decision, Fair Work Commission deputy president Peter Sams said while in his opinion he could dismiss the matter on a “number of bases”, it came down to the short length of time that the worker in question had been employed.

“As the applicant was dismissed on 17 June 2015 – some five weeks later – the applicant had not completed the minimum employment period, irrespective of whether the respondent was a Small Business Employer,” Sams said.

Ben Tallboys, senior associate at Russell Kennedy Lawyers, told SmartCompany this morning this is an unusual case.

“This is quite an extraordinary case in that it involves an employee being fired five weeks into their employment after being arrested at work and charged with a number of crimes,” he says.

“Even though the criminal charges have not yet been determined, and the employee is entitled to the presumption of innocence, it is not surprising that the employee was dismissed in those dramatic circumstances.”

Tallboys says whether or not the dismissal is unfair “really became irrelevant” because the decision turned on the length of time the worker was employed.

“Generally employees need to be employed for six months to make such a claim or 12 months if employed as small business,” he says.

“In this case the Fair Work Commission ultimately dismissed the claim because the employee’s contract clearly demonstrated he had only been employed five weeks before his dismissal, meaning he had no right to make any unfair dismal claims.

“The fairness of his dismissal therefore became irrelevant.”

Tallboys says there are two points to take away from this case.

“It is always a risky business for an employer to dismiss an employee because of pending criminal charges that may ultimately be dismissed,” he says.

“Care needs to be taken by an employer in these situations to either independently investigate the charges or to wait for the criminal proceedings to be resolved.

“There are few situations were an employer can legitimately say it had to dismiss someone merely because of fact they were charged of a criminal offence, regardless of whether it is true or not,” Tallboys says.

“Employers should always get legal advice when contemplating any such decision.”

Tallboys says the decision also highlights the need for employers to clearly set out what behaviour is acceptable from employees both at and outside the workplace.

“Often this will be achieved by an employment contract or position description but sometimes a code of conduct may also be appropriate,” he says.

Anytime Fitness Australia acting executive director Richard Peil told SmartCompany this morning the franchisor and its franchisees did not tolerate “any kind of improper conduct”.

“The franchise owners at this club terminated the contract of the individual as soon as they became aware of this person’s improper conduct,” he says.

“As Anytime Fitness clubs are independently owned and operated, franchisees have reasonable discretion in the operation of their businesses, and these operations need to be consistent with legal requirements at all times.

“Anytime Australia is currently taking steps to remind our franchisees that we believe it is best practise to have a police check run on all potential new staff and contractors,” Peil adds.

SmartCompany contacted Anytime Fitness Parafield but did not receive a response prior to publication.