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True or false: you can terminate an employee who has been charged with a criminal offence.

Unfair DismissalJuly 20, 2016

True or false: you can terminate an employee who has been charged with a criminal offence. (Last Updated On: November 3, 2016)

You can terminate an employee that has been charged with a criminal offence, right? Theft? Assault? Domestic violence? Or even murder?


False, however…

Like many legal matters, the answer is ‘it depends’. It depends on the type of crime, but more importantly, whether the employee is charged or convicted. It is important to make this distinction between a person who has been “charged” with an offence and a person who has been “convicted” of an offence. If a person has been charged, they have not had an opportunity to defend their position. Further, a person can be charged but ultimately not convicted – so terminating their employment could be viewed as premature and therefore unfair.

Consider whether or not there is a genuine connection between an employee’s offence committed outside of work and his or her employment before deciding what action, if any, to take. If the employee has committed an offence at work, employers should deal with the matter by applying the disciplinary procedure in the standard way. If the employee has been charged with an offence outside of work, extra caution should be taken before terminating. According to the Fair Work Commission, there are limitations on the employer’s ability to take disciplinary action in relation to an employee’s out of hours conduct.

Something to consider.

An employer’s right to take fair disciplinary action against an employee for a criminal offence requires careful considerations as listed below.

  • Nature of the criminal offence. For example, is the offence a violent offence? Does the offence impact on the employee’s duties?
  • Position the employee occupies within the employer’s business and the extent to which the conduct can be said to impact on his or her employment
  • Reputational damage to the employer, with regard to the size and nature of the employer’s business or media coverage of the offence

Finally, fairness of a dismissal will depend not only on the reason but also on whether or not a fair procedure was followed.

As an employer, you should assess whether your policies, procedures and employment contracts adequately deal with termination in circumstances where the employee has been charged or convicted of an offence, and where the charge or conviction results in the employee being unable to continue employment.

If you have any employment relations issues or you are not sure how to handle a workplace situation, call Employsure today on 1300 651 415 to talk to a specialist.

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