In cases of serious misconduct involving theft or some other criminal act, it is not uncommon for a criminal investigation to run concurrently with an internal investigation. Any direction or request by the police that an employer deviate from its normal employment practices to allow that criminal investigation to take place can, however, cause difficulty for employers and will not provide a "get out of jail free card" for any procedural failings by the employer in dealing with the employment issues.

This issue was put into sharp focus in the recent decision of the Fair Work Commission (FWC) in Wong v Taitung Australia Pty Ltd [2016] FWC 7982 when a failure to suspend an employee suspected of serious misconduct following a police request was fatal to an employer's defence to an unfair dismissal claim.

In Wong, the applicant was identified by a colleague as a participant in a joint criminal enterprise with other employees involving the theft and resale of goods produced by the employer. The matter was reported to the police and the employer was asked not to take any action against the employees identified to enable the police to obtain further evidence of participation in the criminal enterprise.

Some three months later, the applicant complained to his employer that the truck he was driving was faulty and not roadworthy. The employer tested the truck but identified no concerns, concluding that the applicant was being unnecessarily difficult. The applicant was then suspended. After leaving work, the applicant contacted WorkSafe and the Fair Work Ombudsman to complain about a number of issues, including the safety of the truck.

Four days later, the applicant was provided with a letter setting out allegations in respect of his participation in the criminal enterprise and inviting him to a disciplinary meeting the following day. At the disciplinary meeting, he denied any involvement in the criminal enterprise. His denials were rejected by the employer and he was summarily dismissed.

The applicant complained that his dismissal was unfair and asserted that the real reason for his dismissal was the complaints he had made about unsafe working practices. The FWC disagreed.

Although it was apparent that the applicant's complaints had prompted the timing of the dismissal, they were insignificant when compared to the seriousness of the misconduct which was found to have had occurred. There was, therefore, a valid reason for the dismissal.

However, the FWC went on to find that the employer had made one "unfortunate and important error" which "turned an entirely fair dismissal into an unjust summary dismissal". The decision of the employer to allow the applicant to continue working after discovering his involvement in the criminal enterprise reduced the apparent severity of the misconduct, meaning that the employer could not subsequently summarily dismiss the applicant. This was despite an acknowledgement of the desirability on behalf of the police to gather further evidence to assist the potential criminal prosecution.