Police Investigations & Unfair Dismissal: A Note to Employers

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How should employers handle disciplinary matters when requests are made of them by police? This issue was the subject of contention in the recent Fair Work Commission decision NW v Taitung Australia Pty Ltd[1]. In this case, an employee brought proceedings for unfair dismissal after his employer delayed his dismissal at the request of police.

Background

Mr Nash Wong (“the applicant”) was employed by Taitung Australia Pty Ltd (“the employer”) as a food delivery driver. The company operated as a specialty Asian ingredient and frozen seafood supplier to restaurants and commercial kitchens.

In February 2016, an employee of Taitung Australia came forward admitting to being involved in an arrangement with fellow employees whereby together they would steal company stock by adding additional produce items which were not identified in the particular picking slip orders for truck delivery. The additional items would then be sold by various drivers who would obtain payment for the stolen items.

The NSW Police were notified of the alleged joint criminal enterprise and requested that the employer defer taking disciplinary action on any of the employees involved so that they could try and obtain further evidence of the theft. The employer agreed to this request.

At a disciplinary hearing, the applicant denied any involvement in the joint criminal enterprise.

On 12 May 2016, the applicant made a complaint as to the roadworthiness of a truck he was driving. After testing the truck for himself, the Warehouse Manager said he found nothing wrong with the truck and that the applicant was being unnecessarily difficult.

On 17 May 2016, the applicant received a telephone call advising him that he was been dismissed from his employment.

The applicant brought proceedings alleging that his dismissal was unfair because no valid reason had been given for it.

The Relevant Legislation

Section 387 of the Fair Work Act 2009 (Cth) outlines criteria that the Fair Work Commission must consider when making the determination that a dismissal is harsh, unjust and unreasonable:

  1. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
  2. whether the person was notified of that reason; and
  3. whether the person was given an opportunity to respond to any reason related  to the capacity or conduct of the person; and
  4. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
  5. if the dismissal related to unsatisfactory performance by the person–whether the person had been warned about that unsatisfactory performance before the dismissal; and
  6. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
  7. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
  8. any other matters that the FWC considers relevant.

The employee’s case

The applicant alleged that his dismissal was unfair because the allegations about his capacity or conduct had not been communicated to him prior to his dismissal. Instead the applicant contended that his employer dismissed him due to ulterior motives including the complaint he had made on 12 May 2016, as well as to avoid paying the employee’s impending long service leave entitlements.

The employer’s case

The employer argued that the applicant’s dismissal was for a valid reason because it had reasonable grounds to suspect the applicant was guilty of misconduct involving theft. The employer submitted that the complaint made by the applicant on 12 May 2016 did not form part of the reason for his dismissal.

The decision

The Commission found that the employer did have a valid reason to dismiss the applicant for serious misconduct since his involvement in theft against the company had been verified. The difficulty for the employer was that they had full knowledge of the nature and extent of the misconduct and had still allowed the applicant to continue working until May 2016. It was only after police had gathered all of their evidence relating to the criminal charges that the employer invoked summary dismissal. The delay resulted in the summary being harsh, unjust and unreasonable. This finding was made despite the employer taking direction from the NSW police to defer disciplinary action on the employee.

Despite the applicant successfully arguing that his dismissal was unfair, he was not awarded compensation because of the unique circumstance and severity of his actions.

Lessons

This decision is important for employers who need to be aware of their obligations under employment law particularly when requests are made of them by police. Employers should seek independent legal advice to ensure that they are acting in accordance with employment law whilst cooperating with the interests of law enforcement officers.

[1] [2016] FWC 7982.

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This article was written by Natasha Duff (Associate).