Ask a Lawyer: What can HR do if an employee commits a crime?

A leading employment lawyer offers her advice to HR professionals in a difficult situation.

Ask a Lawyer: What can HR do if an employee commits a crime?
Criminal record checks offer valuable insight into the past behaviour of a potential employee – but what happens when a worker commits a crime while they’re already under your employ?

Jennifer Mills is a partner with Anthony Harper – she says employers are able to discipline or dismiss staff in relation to conduct which occurs outside of the workplace; this includes committing a crime.

“Assuming that an employer is aware that an employee has committed a crime, the employer may initiate an investigation process and assess whether the employee's conduct will have an impact or potential impact on the employee's employment or the employer's business,” says Mills.

“As with dismissals of any nature, employers must carry out a fair process, which includes reasonable inquiries, which left them with grounds to believe on the balance of probabilities that the employee has engaged in misconduct sufficiently serious to warrant dismissal.”

Mills – who heads the firm’s national employment law practice – says employers will need to consider all relevant information and circumstances in deciding the appropriate action.  This includes:
  • The nature of the employee's actions (which may or may not amount to a crime)
  • The nature of the workplace (for example, is it a government department, a publicly listed company, a small closely held company)
  • The nature of the employee's position (for example, what responsibilities and authorities does the employee exercise, is the employee expected to represent the company in public)
  • The potential effects on the workplace (for example, how the actions could affect other employees or the workplace relations)
  • The potential effects on the employer's interests and reputation.
Incredibly, Mills says employers may even have the power to discipline or dismiss staff if they’re ultimately found not-guilty of committing a serious crime.

“If an employee is prosecuted for a serious crime and has not been found guilty, an employer is not prohibited from commencing its own investigation, and if appropriate, an employer may take disciplinary action against the employee,” says Mills.

“It is noted that an employer is not necessarily concerned with whether the employee has committed a crime.  The employer's concerns are more likely to be based on the effects of the employee's conduct on their employment,” she continues.

Mills explains that, in a criminal proceeding, the prosecution has to prove beyond reasonable doubt that the accused is guilty of the crime, which is a very high standard to meet.

“An employer is not subject to the same standards in a disciplinary process,” says Mills. “As such, although an employee is not found to be guilty in a criminal proceeding, that does not preclude an employer from conducting its own investigation and reaching its own conclusion.”

Ultimately, Mills says the test to be applied is whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.

“In assessing this, the employer is not required to establish whether a crime had been committed beyond reasonable doubt,” says Mills. “The onus on the employer is to show that it was open to a fair and reasonable employer to conclude that the employee had engaged in misconduct that deeply impaired the trust and confidence that is essential in an employment relationship.”


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