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Unfair DismissalMarch 29, 2019
Can you terminate an employee if they have been charged with a criminal offence? As with most things HR — it’s rarely clear cut, and this kind of situation is no exception. It does depend on the crime and whether they are convicted. There is a distinction between the two. Most importantly however is whether there is a “relevant connection” between any criminal offence committed by an employee, and their actual employment duties, as well as the procedure you follow in seeking termination.
Someone who has simply been charged has not yet had their day in court to defend themselves. If they are charged and later escape conviction, dismissing them could be seen as unfair as it was a premature decision. Moreover, is there a connection between their employment and the offence that was committed outside of work? If this offence was committed at work, then an employer must deal with the matter through the proper disciplinary procedure. Extra caution must be taken if your employee has been charged with an offence outside of the workplace.
As per the Fair Work Commission, there are limitations on the disciplinary action you can take with employees based on their conduct outside of their working hours.
Let’s look at why you may be able to take action against an employee who has been charged with a criminal offence.
Even for employees charged with a serious crime, the correct procedures and processes still need to be followed. It’s important that you know your employment contracts, procedures and policies in order to avoid wrongly terminating an employee — even if they have been charged with a criminal offence.
Whenever you dismiss an employee, there is a process and a procedure to follow. When it comes to a criminal charge, it’s advisable to wait for an outcome before taking decisive action. However, you should also consider the role the person fills and how that criminal offence or conviction impacts their ability to carry out that role.
For example, if an employee is charged with a drink driving offence and they are a driver, they may lose their license for a substantial length of time. If this is the case, you may be able to terminate employment as they are now unable to carry out the role they were hired for. Yet, those conditions wouldn’t apply to an office-based employee who doesn’t need to drive a car as part of their normal duties. However, in both cases, procedural fairness would need to be followed.
In Deeth v Milly Hill, the Fair Work Commission found that dismissing an apprentice butcher who had been charged with accessory to murder after the fact was harsh and unjust. In summarily dismissing the employee without a proper investigation, the Commission ruled in favour of the employee, who was awarded six weeks’ wages in compensation.
The lesson? That for even serious crimes, you still must follow procedural fairness in dismissing an employee otherwise you could find yourself on the wrong side of the Fair Work Commission.
You are permitted to carry out criminal background checks during the hiring process where this is relevant to a particular job. However, you cannot hold someone’s conviction against them unless it is relevant to the role that you expect them to perform. You should have a policy in place with regards to background checks and notify potential applicants of this when you advertise positions.
During the interview, you should again highlight the need for a background check. You should not carry out any background check until a candidate has been shortlisted.
You would need to have a justifiable reason for conducting criminal background checks on existing employees, and should seek specialist advice before starting them.