Crimes at Work: The Consequences for Employment

Abstract:     
Employees are occasionally dismissed from their employment by their employers for conduct which might constitute a crime. Employers usually do not need to prove the commission of a crime, but rather they need to prove serious misconduct, which justifies termination of employment. What is significant in most of these cases where the employee's conduct might also constitute a crime, therefore, is that the employer generally does not identify the conduct as a particular crime, but rather describes the nature of the conduct as amounting to 'serious misconduct', thereby justifying dismissal.

In Harvey v Qantas Australia Ltd, for example, the basis of dismissal was serious misconduct by an employee who had breached three employer policies - Standard of Reasonable Behaviour Policy, Qantas Drug and Alcohol Policy, and Qantas IT Usage - in purchasing drugs over the internet. The complaint by the employer about the employee's conduct was not so much that it was in breach of the criminal law, although in all likelihood this did occur, but rather that the conduct contravened the employment policies. This contravention provided valid reason for termination and the decision to dismiss was made after thorough and fair processes.

Similarly, in Sabeto v Waterloo Car Centre Pty Ltd (t/as Red Hot Rentals), the full bench of the Australian Industrial Relations Commission (the Commission) found that the valid reason for terminating employment was the failure of the employee, without any reasonable excuse, to bank moneys received in the course of employment. The Commission was clear that in so finding it made 'no suggestion that [the employee’s] failure was associated with dishonesty' (at [16]).

Number of Pages in PDF File: 8

Keywords: Crimes at work, termination for misconduct, Harvey v Qantas, Sabeto v Waterloo Car Centre

JEL Classification: K00, K10, K19, K2, K20, K29, K3, K30, K39, K42

Accepted Paper Series