Australia: Criminal Grounds for a Dismissal
A criminal conviction may not be sufficient grounds for a dismissal, according to a recent case before the Fair Works Commission (FWC).
Background
The applicant had been employed in Queensland as a train driver and driver tutor. While employed in that capacity, he pleaded guilty to the criminal charges of common assault, breach of bail conditions and finally possession of dangerous drugs, none of which events took place while at work. He was not given a custodial sentence. Following the court proceedings he was dismissed for cause.
The employee then made an unfair dismissal application on the ground that the employer did not have a valid reason for the dismissal based on the criminal convictions.
FWC Decision
The FWC held that the conviction of itself did not amount to grounds for dismissal. The employer must consider whether the conduct:
- had caused serious damage to the employment relationship;
- caused damage (including reputational damage) to the employer’s interests;
- was incompatible with the employee’s duties.
In this case, the FWC found no measurable impact on the employer’s reputation (no media coverage of the conviction) and insufficient connection to the employment role. Therefore, there was no valid reason for the dismissal and the dismissal was unfair.
Actions to Consider
- Ensure contractual terms and policies require the prompt disclosure of any criminal prosecutions.
- Carefully consider the actual connection between any conviction and the employee’s role.
- Take care to collect clear evidence of reputational impact, where relevant.
- Always ensure a fair process, including considering alternatives to dismissal where possible.
This is a high-level general update only. Legal advice should be obtained on specific circumstances.