Employees facing criminal charges

Employees facing criminal charges

Having an employee facing criminal charges can be a sticky situation!

Do not assume that you can legally terminate the employment of someone facing of the criminal charges.

Employers must give any accused employee a chance to respond and to tell their version of events, no matter what the circumstances. When terminating an employee it is essential to follow correct process.  In previous cases, the Fair Work Commission’s major concern has been procedural fairness.  Before you terminate an employee you must have a valid reason for doing so.

You must ask yourself, “is the criminal issue/charge relevant to the role?” For example, if the employee has been charged with fraud and they are your accountant it doesn’t bode well for your business.   However, if the employee was charged with a one-off drunken episode that was out of character and not a repeat offensive this may not apply to their employment.

To help you determine whether or not you should terminate this employee, you may want to ask yourself:

  • Does the criminal charge show a pattern of behaviour
  • Is this a repeat offence
  • Is this employee likely to put customers or employee at risk of harm

You must look at this in a practical sense when making a decision around the issues’ relevance to the employment of your staff member.  You need to consider how a reasonable person would view the situation.

Conduct a proper investigation

When considering sacking any employee facing “out of hours” criminal offence charges a proper process needs to be followed.  A recent Fair Work Commission decision, has reinforced the need for employers to conduct a proper investigation, and avoid overreacting!

The FWC ordered an employer to pay its former apprentice six weeks’ wages in compensation for unjustly terminating him.  The employee had been facing
charges of being an accessory after the fact to murder.  The business had expressed concerns about how the criminal charge affect there reputation.  Furthermore, the business sited that they feared that an impaired reputation would affect the financial viability of the business.

FWC found while the actions were “grave”, they fell short of what would be “reasonable grounds on which to base a finding of serious misconduct”. Critically however, while the dismissal was valid, the FWC said it was inconsistent with the Small Business Fair Dismissal Code.

The FWC found the company had failed to “conduct a reasonable investigation into the matter” to determine whether a dismissal was “reasonable”.

The key note made in this case, was that the employer had failed to establish “a relevant connection between the criminal activity and the employee’s employment”.

“There is no presumption that a criminal conviction alone is a valid reason for termination of employment, particularly where the criminal offence was committed outside of work” FWC stated.

While on the surface this may have looked like a clear cut termination, however it wasn’t.  To avoid this you must always try to view the situation through the lenses of the relevant legislation.  In this case that legislation was the Small Business Dismissal Code.

In conclusion

Seeking professional advice is always the safest step, no matter what the set of circumstances you find yourself facing.

If the charges are relevant to the role, the FWC will assess the situation.  They will determine whether the civil standard of proof, that is, “on the balance of probabilities”.

In any case, please contact HR Central before making any critical decisions regarding termination of employment.

Michael O'Shaughnessy

Michael is a specialist in all things HR. With vast HR experience in the USA and Australia, Michael brings a wealth of knowledge and advice to HR Central. When he's not blogging for HR Central you can find him out for dinner in one of Melbourne's newest restaurants.

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