EMPLOYEE’S GUILTY PLEA FOLLOWING TERMINATION
SUFFICIENT TO JUSTIFY DISMISSAL
A former Brisbane City Council (‘Council’) employee’s unfair dismissal claim has been dismissed by the Australian
Industrial Relations Commission (‘AIRC’).1 The AIRC ruled that the termination of the employee’s employment could be
justified by a criminal conviction related to his employment which occurred 6 months after the termination.
Facts
The employee was stood down with pay pending the result of an investigation concerning allegations of physical
threats he made against another employee. At the time the employee was stood down he was requested to return
assets owned by the Council within 3 days. These assets included a camera, car keys and a mobile telephone. The
employee failed to return the items because he was ‘miffed’ with the Council.
Following his failure to return the items, the Council sent the employee a letter asking him to show cause as to why
his employment should not be terminated. The employee failed to respond.
Three days prior to the termination of his employment, the employee was charged with fraud and with theft of the
Council’s property. The charges related to the items he failed to return and other items and activities he had
procured during his employment.
The Council then wrote to the employee terminating his employment. The employee’s dismissal was based on
following two grounds:
- the employee’s refusal to return Council property following his suspension with pay for threatening and abusive
behaviour; and
- the employee had been charged with theft and fraud by the police. The theft and fraudulent behaviour were
undertaken by the employee against the Council. The letter stated:
“subsequent to this matter is the ongoing police charges and court appearance associated with a
number of indictable offences. This situation is not acceptable for an employee of council…”
The employee appeared in the Magistrate’s Court approximately 6 months after his employment was terminated
whereby he pleaded guilty to 6 charges.
In the meantime, the employee filed a claim in the AIRC arguing that the termination of his employment was harsh,
unjust or unreasonable because he had not been convicted of the offences at the time of his termination.
Held
The AIRC ruled that ordinarily the fact that an employee had been charged but not convicted of an offence would
not be sufficient grounds for the termination of employment. However, Senior Deputy President Richards ruled that
the termination was justified because the operating reason for the termination was the employee’s failure to return
Council property. This constituted a lawful direction from his employer which was ignored and combined with the
employee’s failure to return the property and to respond to a letter requesting him to show cause as to why his
employment should not be terminated, justified the Council’s actions to terminate the employment relationship.
The AIRC further ruled that the termination was justified due to the fact that the employee pleaded guilty to the
criminal offences he committed against his former employer.
Previous case law2 provides that an employer may justify an employee’s dismissal on grounds upon which they did
not act and of which they were unaware at the time of the dismissal.
The charges to which the employee pleaded guilty were not the operating reasons behind the termination of his
employment. However, they were considered by SDP Richards to constitute part of the factual matrix the
Commission may use in order to determine whether an employee’s dismissal is harsh, unjust or unreasonable. The
admissions made by the employee due to his guilty plea meant that he had ‘fatally compromised his employment
contract.’ At the time the acts were committed, the employee destroyed the trust and confidence necessary to
maintain the employment relationship, thereby justifying the termination of his employment.
Main implications for Employers:
- In some cases, facts which come to light following an employee’s dismissal can be used by an employer to
retrospectively justify the employer’s decision to terminate the employment relationship.
- In this case the criminal charges were not the sole reason for the dismissal, there were other reasons
justifying the termination of employment.
- Employers should exercise caution when deciding to terminate the employment of an employee due to the
laying of criminal charges prior to the charges being proven.
If you would like further information in relation to the information provided in this Employment Update please
contact Aitken Legal.
1. Luke Edward Johns v Brisbane City Council [2008> AIRC 230 (17 March 2008)
2. Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 and Concut Pty Ltd v Worrell [2000> HCA 64
This Update has been prepared by Aitken Legal. We recommend that you seek legal advice before applying the information to particular circumstances.
