When should personal legal matters be disclosed to your employer?
The Queensland Industrial Relations Commission (QIRC) recently dealt with a case where a worker challenged a formal reprimand he received for not telling his employer about criminal charges filed against him.
The worker argued he wasn't properly trained about the policy, couldn't be expected to know every workplace rule, and had followed legal advice about his situation.
The case raised important questions about what workers must tell their employers, how workplace policies should be communicated, and whether getting outside legal advice affects an employee's obligations to follow internal policies.
The situation started in November 2021 when the worker, a cook supervisor at Redcliffe Hospital, was charged with several serious criminal offences unrelated to his work duties.
He was committed for trial at the District Court in Brisbane in February 2022 and was later acquitted of all charges between November 2023 and May 2024.
Queensland Health had established a policy requiring employees to notify them about any indictable offence charges. However, the organisation only learned about the charges when the Office of the Health Ombudsman contacted them in February 2022.
The QIRC noted that while being charged doesn't automatically affect employment status, employers need to know about such situations: "[The employer] has a significant duty of care to the public it serves. While mere charges are not of themselves a basis to determine an employee's fitness to remain in the workplace, they are an indicator of an undetermined risk."
The cook supervisor had completed Code of Conduct training in June 2020. While this training didn't explicitly explain the disclosure policy, it directed staff to integrity-related policies. The worker argued he couldn't be expected to know every policy.
The Commission addressed this argument, stating: "[The worker] overlooks the fact that the policies and directives are available either on a staff intranet in most public sector workplaces or on the internet. A simple Google search reveals this."
The worker also said he got legal advice suggesting he didn't need to disclose the charges. However, evidence from his former lawyer showed she had actually recommended he seek specific employment law advice about his disclosure obligations.
The healthcare setting added another dimension to the disclosure requirements. The Commission explained: "The risk also varies depending on the nature of the charges and the role performed by the employee charged."
In considering the worker's situation, the QIRC acknowledged his privacy concerns: "[The worker] was confronted with a relatively unique dilemma and no doubt wanted to protect his privacy in circumstances where he had not been convicted of the charges. He believed (apparently correctly) that he would not be convicted and, given the matters did not arise in the context of his employment, he elected to conceal them."
The Commission found this understanding of risk management particularly relevant in healthcare: "Among the wide range of foreseeable possibilities arising from the risk is significant harm (or worse) to co-workers, patients, or members of the public. For this reason, the management of that risk creates a reasonable requirement that employees charged with indictable offences disclose that fact to [the employer] to allow proper management of the risk."
The disciplinary process focused on two key issues: the worker's failure to inform his employer about the criminal charges, and his failure to disclose his court appearances related to these charges.
The delay in concluding the disciplinary process was tied to the timing of the criminal proceedings. The Commission rejected the worker's argument that this delay suggested presumption of guilt, explaining that the outcome of criminal proceedings would determine the nature of any additional disciplinary actions.
In its final decision, the QIRC stated: "While I accept that [the worker's] non-compliance was not a deliberate act of deceit, and that his failure to comply with the policy was not entirely his fault, I am unable to be satisfied that these factors render the decision unfair and unreasonable." The Commission confirmed the formal reprimand.
