Worker argues his action was guided by 'legal advice'
The Fair Work Commission recently dealt with a case involving a worker dismissed on the grounds of failing to report being charged with criminal offences.
The worker contended that his employer’s policy does not require the dismissal of an employee for such conduct, and the non-reporting was merely a “one-off incident.”
Around 16 years old, the worker started his employment with a predecessor to a rail services company and was a well-regarded employee in terms of his performance.
“Over the years, the applicant [worker] made his way through the employment ranks from junior station assistant to, at the time of dismissal, Station Duty Manager, Level 4,” the Commission said.
However, the worker’s dismissal arose when the employer found out about the worker’s breach of the code of conduct.
The said clause specifically obliged workers to immediately make a report if they have been the subject of relevant criminal charges.
“In this case, the applicant [worker] did not immediately notify his manager that on 10 May 2021 he had been charged by the NSW Police with 13 criminal offences (“the May 2021 Charges”),” the FWC noted.
Such a matter was made known to the employer around one year after the charges had been laid through an anonymous tip-off.
“The tip-off incorrectly advised the respondent [employer] that the applicant [worker] had by then been convicted of charges (around the time of the tip-off, charges were still pending and had not been determined by a court),” the Commission said.
Meanwhile, the worker contended that his decision of non-reporting was affected by legal advice. He said that his lawyer advised him to delay informing his employer about the charges until the lawyer had the opportunity to settle the charges.
He further noted that he fully intended to inform his employer of the pending charges but was later denied the chance because an unknown informant sent an anonymous email to his employer.
HRD previously reported about the case of a worker who argued that he was still employed while serving time in jail. He reportedly held onto the employer’s alleged promise of “holding his position open” while he was incarcerated.
Considering all the facts in the case, the Commission was not satisfied that the worker’s dismissal was harsh, unjust, or reasonable.
The Commission also noted that there was indeed a valid reason for the worker’s employment termination, given the grave breach of the code of conduct.
“I accept the respondent’s submission that the applicant’s reporting breach was not a minor breach, but constituted a breach which went to the heart of the trust that the respondent is entitled to have in its employment relationships,” it said.
Ultimately, the FWC said that regardless of the advice given by the worker’s lawyer about non-reporting the criminal charges, the worker should have adhered to his reporting obligation as stated by the code of conduct.
