Innocent until proven guilty remains a basic right
A recent ruling by the Fair Work Commission is a clear warning to employers: criminal charges against an employee are not necessarily grounds for instant dismissal.
CCIQ’s employer assistance advisor Sarah Winwood highlights a case where serious charges were brought against an employee and he was subsequently sacked.
Police later withdrew the charges and the employee filed for wrongful dismissal, ultimately winning his case because the commission determined his employer acted prematurely instead of finding alternative jobs until the matter was dealt with by the courts.
Allegations against a teacher accused of indecently assaulting a 16-year-old girl appeared to be fair and reasonable grounds for termination as a measure to eliminate future occurrences.
However, the Fair Work Commission ruled otherwise in a recent case involving a Catholic all-girls high school in New South Wales.
The police charges against the teacher deemed him not able to work with children because he was considered to be a ‘disqualified person’ under the Child Protection (Working with Children) Act 2012 (NSW) (the Act).
His high school employers argued they could no longer employ the teacher due to the charges and this was the main reason for terminating his employment.
The charges against the teacher were later dropped by the police and he then commenced unfair dismissal proceedings against his former employer.
The Fair Work Commission (FWC) considered the Act and allegations against the teacher and examined the matter to determine if being a ‘disqualified person’ could be reasonable grounds for termination.
A ‘disqualified person’ under the Act has their working with children clearance revoked and a bar from performing any child-related work. It was therefore argued that under the Act, the employer was obligated to end the teacher’s employment as he was no longer qualified to continue to perform his role.
The FWC found that the Catholic Education Office’s decision to terminate the teacher because he was unable to perform child-related work was not an appropriate course of action and determined the teacher was, consequently, unfairly dismissed.
The Commission indicated the school should have looked at alternative positions within the business that were not child-related, at least until the outcome of the criminal proceedings were identified.
While you may believe police charges warrant a termination, this case demonstrates otherwise and acts as a warning to employers that it may not always be appropriate to dismiss employees, particularly when the outcome has not been finalised.
It is likely that dismissals on the ground of a criminal offence could be protected from unfair dismissal claims, if the crime is proven in court.
In this case, the FWC found that clause 9 within the Act does not necessary mean an employer can terminate someone’s employment if they become a ‘disqualified person’.
Implementing a criminal conviction policy would aid in eliminating associated risks when dealing with employees who have police charges against them.
It is important to consider all options before proceeding with any termination and seek advice if you are unsure.
The Employer Assistance team can be contacted on 1300 731 988 or at firstname.lastname@example.org to assist you with any employment matters. seek advice if you are unsure.
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