FWC dismisses unfair dismissal claims from worker who failed to divulge criminal charges

FWC dismisses unfair dismissal claims from worker who failed to divulge criminal charges

The Fair Work Commission has rejected an unfair dismissal claim from a long-term rail employee, who was dismissed following his failure to inform his employer that he was facing a series of criminal charges.

The employee, ‘JS’, commenced employment with a predecessor to Sydney Trains in October 1985 as a 16-year-old. During his 37-year employment history, he had progressed to the position of Station Duty Manager, which he held until his dismissal on 1 December 2022.

The reason for his dismissal was a breach of the employer’s policy, ‘Our Code of Conduct’, in that he failed to disclose to his employer that he had been charged with certain criminal offences, contrary to the mandatory reporting obligations in clause 14 of the Code.

Sydney Trains only became aware of the charges approximately one year after they had been laid after receiving an anonymous tip-off, leading to an internal investigation. The charges against JS included supplying cannabis, possessing a prohibited weapon, and dealing with property proceeds of crime.

Ultimately, he pleaded guilty to 12 offences.

JS had previously been suspended from employment in 1990 after being convicted for possessing a prohibited drug and possessing drug implements. During the current investigation, Sydney Trains became aware of a further criminal conviction in approximately 2001 for an unknown offence, which he had failed to disclose to his employer.

In submissions before Commissioner Donna McKenna, JS claimed that he had received legal advice from his solicitor to delay advising his employer of the charges until they had been settled and facts agreed upon with the Police Prosecutor.

In addition, he claimed mitigating factors, including that he had not engaged in serious misconduct, the penalty of termination was disproportionate to his offence, his age and length of service, and the impact of termination on his finances and family.

However, Commissioner McKenna determined that Sydney Trains had a valid reason for termination. As she noted,

“As to that, the May 2021 Charges involved, in short, charges with components concerning drugs, guns and alleged proceeds of crime. I accept the respondent’s submission that the applicant’s reporting breach was not a minor breach, but constituted a breach that went to the heart of the trust that the respondent is entitled to have in its employment relationship”.

Importantly, Commissioner McKenna also noted,

“In and of themselves, criminal convictions do not necessarily provide a valid basis for the dismissal of an employee … The fact of the convictions in 2022 does not, however, appear to have been the principal reason for the dismissal – at least as the case was advanced before me. It was the reporting breach which appeared to have a greater emphasis in the respondent’s case albeit the fact of the subsequent convictions significantly fed-into the decision-making concerning the disciplinary outcome of dismissal”.

The Commissioner also rejected the submission that the legal advice recommending non-disclosure gave the employee immunity in the circumstances, noting,

“The (only) appropriate course would have been for the applicant to adhere to his reporting obligation under the Code of Conduct once that obligation was engaged around 10 May 2021”.

Ultimately, in dismissing the application, Commissioner McKenna noted,

“I am not satisfied that the dismissal was disproportionate to the applicant’s conduct in him failing to adhere to the reporting obligation imposed by the Code of Conduct”.

JS v Sydney Trains (U2022/11462) 5 April 2023

For queries about Codes of Conduct, disclosure, misconduct, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 338.0523

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