Resources: Blogs

Leading the charge

Blogs
|

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.

Similar articles

Employer’s withdrawal of role constituted dismissal from employment

Late withdrawal

For most employers, casual employment is favoured because of the flexibility it provides – employees are employed as required and have no guarantee of ongoing employment. This flexibility however does not mean that casual employees are not protected from adverse action.

Read more...

Fair Work Commission finds out-of-hours drink driving offence was not a valid reason for dismissal

Off the clock

Generally, the way in which an employee conducts themselves out-of-hours does not fall within the realm of what the employer can supervise or control. However, there are times where an employee’s conduct after business hours and away from work can impact the employment relationship.

Read more...

FWC upholds dismissal of an employee who repeatedly and deliberately accessed customer’s confidential information without authorisation

Celebrity search

During the course of their employment, employees may have access to confidential information which belongs to their employer. This information may be in the form of personal information provided by customers and is therefore sensitive in nature.

Read more...

Commission finds employee’s flexible working request to work entirely from home was not reasonable

The worst has now passed

One of the many changes to the Fair Work Act 2009 (Cth) introduced this year include the Fair Work Commission’s new powers to deal with disputes relating to requests for flexible working arrangements.

Read more...

Remote work environment risks and considerations

Barking up a broad tree

Work from home arrangements have become the “new normal” across many workplaces since the COVID-19 pandemic.

Read more...

Superannuation obligations for independent contractors

Supercharged

A recent decision of the Federal Court of Australia – Full Court has provided some clarity to employers in relation to when the obligation to pay superannuation will or will not arise.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Sign up to receive the latest industry updates with commentary from the Workplace Law team direct to your inbox.