Mr Steve Leigh aka Wilson v Nestle Australia Limited T/A Uncle Tobys [2010] FWA 4744

From time to time employers are faced with the dilemma of deciding whether or not to continue the employment of a worker either charged with a criminal offence or convicted of a criminal offence. This was the situation faced by Uncle Tobys in the dismissal of a casual production worker.

The casual worker had been engaged by Uncle Tobys for approximately seven years. In 2007 the worker was charged with a number of criminal offences including:

• harassment
• stalking, and
• making, producing and possessing child pornography.

On 23 April 2009 the worker was found guilty on eight charges. He immediately appealed the sentence on three convictions for harassment and stalking. On the remaining five convictions for stalking, making, producing and possessing child pornography he appealed both the convictions and the sentences. Uncle Tobys were aware of the charges, convictions and appeals.

The worker’s last shift was 16 April 2009. He claimed that after the convictions, Uncle Tobys did not offer him any more shifts. In June 2009 Uncle Tobys effectively suspended the worker from duties when they deactivated his security access card, but they did not notify him of his suspended access or consult him in making that decision.

The worker brought an unfair dismissal application alleging he had effectively been dismissed from his employment because of the criminal convictions. In July 2009 upon being served with the worker’s unfair dismissal application Uncle Tobys formally removed the worker from the casual roster.

Senior Deputy President (SDP) Drake found that the worker’s dismissal occurred at the time he was removed from the casual roster. She found that the worker, although casual, was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on that basis. She then considered whether the worker’s dismissal was harsh, unjust or unreasonable.

Importantly, SDP Drake noted that:

‘As a matter of law, as soon as Mr Wilson [the worker] lodged an appeal from any conviction, there was no conviction recorded. The convictions are suspended. … These were of course all matters not resolved at the time of the decision to remove Mr Wilson’s access and then subsequently remove him from the casual pool of employees.’

She further stated that:

‘There is no general presumption that a criminal conviction is a valid reason for termination of employment. It is a matter to be decided on the facts of each case. The nature of the employment, the role of the employee and the nature of the offence are all relevant.’

Ultimately SDP Drake held that the worker’s convictions provided a valid reason for the termination of his employment. In particular SDP Drake noted that the worker’s convictions related to conduct of a sexual nature, particularly offensive towards women, of which there were a significant number in the workplace. The worker's lack of good character in this regard and Uncle Tobys’ obligations to provide a safe workplace supported a valid reason for the termination of his employment.

However, SDP Drake took the view that Uncle Tobys was a ‘procedural fairness free zone in relation to Mr Wilson’. She said that, before any decision to terminate his employment was made, the worker was entitled to an opportunity to consider and respond to Uncle Tobys’ concerns about his continuing employment, even it if was unlikely that anything could persuade Uncle Tobys to continue his employment. He should have been allowed an opportunity to respond to the newspaper articles about his charges and convictions and to put matters in mitigation. SDP Drake suggested that it might have been appropriate to suspend the worker from the casuals list until the resolution of the appeals and, when they were confirmed on appeal, to then terminate his employment.

SDP Drake found that at most the worker should have been provided with four weeks to respond to the issues about his criminal charges and ongoing employment. On that basis Uncle Toby’s was ordered to pay the worker 10 days wages representative of the average number of days he would have worked in the four week period.

This decision places a clear responsibility on an employer to afford procedural fairness to employees who have been charged with criminal offences, before making any decision to suspend or terminate their employment. It also suggests that employees who appeal convictions should be suspended until the resolution of the appeals. On the other hand, it confirms that some criminal convictions will provide a valid reason for termination, particularly where they raise a safety concern for other workers.

Finally, if you have a worker, either charged with or convicted of a criminal offence it is important to remember this will not provide an automatic reason for termination. The conviction and charges must be viewed in the context of your workplace, the worker’s role in your workplace and crucially the worker, like all others, must still be afforded procedural fairness.

Further information

For further assistance or enquiries please contact:

Tim Longwill on 07 3233 8974
Angela Petie on 07 3233 8718.