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Disclosure of criminal charges during employment

We often speak about the importance of honesty and candour in an employment relationship, particularly when it comes to matters that may be personal to an employee but which may also affect their ability to perform their role, such as their health, family or living status or their criminal record.

We often speak about the importance of honesty and candour in an employment relationship, particularly when it comes to matters that may be personal to an employee, but which may also affect their ability to perform their role, such as their health, family or living status or their criminal record.

These values are so important because they aim to protect an employee’s general right to privacy, leaving employers to simply trust that the employee will be truthful and candid with them when such matters arise. It is for this reason that a lack of honesty and candour has been widely accepted at common law as a valid reason for dismissal, including in the Fair Work Commission’s (FWC’s) recent decision of Strangio v Sydney Trains [2023] FWC 730.

The matter dealt with a Station Duty Manager who had been employed by Sydney Trains (the Employer). The employee had been employed by the Employer for 37 years and had a largely unblemished record. However, he was dismissed in December 2022 for failing to report to the Employer that he had been charged with certain criminal offences in May 2021.

Initially, the employee had been charged with 13 offences involving the supply of an indictable quantity of cannabis, possession or use of prohibited weapons without a permit, firearms, as well as dealing with the proceeds of a crime.

In May 2022, the employee pleaded guilty to 12 offences (following amendment of some of the charges) and a conviction was recorded for some (but not all) of them. Most significantly, the employee was formally convicted of the charge of supplying an indictable quality of cannabis (requiring community service) and possession or use of a prohibited weapon without a permit (requiring payment of a fine).

The Employer was not made aware of any of the above until April 2022 when it received an anonymous tip-off. It ultimately made the decision to dismiss the employee, citing his breach of its Code of Conduct as the primary reason for his dismissal.

The Code of Conduct required employees to immediately notify their manager of the following events:

  • if they had been charged or convicted with any offence which may impact on their ability to undertake part or all of the inherent requirements of their role; and
  • if they had been charged or convicted with a serious criminal offence (i.e., an offence committed in NSW punishable by imprisonment for six months or more), whether or not related to work.

Before the FWC, the employee explained that the reason for his non-disclosure was based on advice received from his criminal lawyer, which was to the effect that he should not disclose the matters to the Employer until the final form of charges had been settled.

The employee also submitted that the dismissal was harsh on the basis that it was, at worst, a serious error of judgment and a one-off incident. He also noted that the Employer’s policies and procedures did not require dismissal for such a breach and it was particularly harsh given his remorse and his age, length of service and the adverse impact on him and his family.

The FWC did not agree, finding that the Employer had a valid reason for dismissing the employee. In doing so, it re-iterated the principle mentioned above – noting that the employee’s failure to disclose was not a minor breach of the Code of Conduct. The FWC considered it to be “a breach which went to the trust that the [Employer] is entitled to have in its employment relationships”.

It also considered the Employer’s evidence that Station Duty Managers were required as part of their role to explain to staff that they could not work with drugs or alcohol in their system and, as a result of the Employee’s charges, it was difficult to have confidence in the employee’s ability to deliver this message and to do so genuinely.

The FWC also did not accept the employee’s reasons for the non-disclosure. It found, irrespective of the advice given to the employee, he still had an obligation to the Employer to immediately notify it of the charges and he failed to comply with that obligation.

Overall, the FWC found that the dismissal was not disproportionate to the employee’s conduct. It therefore dismissed the employee’s application.

Lessons for employers

The FWC has made it clear on numerous occasions that a crucial element of the employment relationship is trust – particularly, that an employer must be able to trust that an employee will be honest and candid with them about personal matters affecting their employment.

As this decision shows, having policies and procedures (such as a Code of Conduct) that are well-drafted and which encourage and/or mandate honesty and candour will greatly assist employers in defending these types of dismissals.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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