Dismissal for criminal conviction overruled

A Full Bench of the New South Wales Industrial Relations Commission has upheld a decision to reinstate an employee, finding that his dismissal for a domestic abuse related criminal conviction was an over-reaction on the part of the employer.

In the case of Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling [2012], the employee had been employed for 15 years. During his tenure the employee was charged with, and pleaded guilty to two offences relating to domestic violence. In the first two instances no conviction was recorded, however the employer was aware of the court proceedings and warned the individual that his off duty behaviour might, in certain circumstances, be regarded as a work related issue.

Following a conviction for a third domestic abuse offence, the employer summarily dismissed the employee, and an unfair dismissal application was subsequently made.

According to case commentary by workplace law experts at Mallesons, the Commission ordered the reinstatement of the employee on the grounds that:
 

• he had a long unblemished employment record
   
• there was “no acceptable evidence that the performance of his duties would be compromised by his recent out-of-hours criminal history”; and
   
• he was genuinely remorseful and had sought counselling and medical treatment, which was having a positive effect.

Following the reinstatement order, the employer appealed to the Full Bench who found no error in the original decision. “The view seems to have been taken that [the employee] had, in effect, three criminal convictions, when two of the matters were in fact dealt with … without proceeding to conviction,” the Full Bench held. The decision was principally upheld because the employer was “unable to establish why the same out-of-hours conduct dealt with so leniently by the Local Court would warrant the harshest industrial penalty, namely loss of employment”.