A Full Bench of the New South Wales Industrial Relations Commission (NSWIRC) has upheld a decision to reinstate an employee, on the basis that his dismissal for having three criminal convictions “appears to have been ill-considered and somewhat of an over-reaction”.

Implications for employers

As Commissioner Bishop acknowledged at first instance, an employer may have “legitimate concerns” in relation to an employee’s criminal convictions, which might constitute a “valid reason” for an employee’s dismissal. However, this case acts as a reminder that a decision to dismiss an employee because he or she has criminal convictions should be taken carefully. Such a termination might well be found to be harsh, if there is no evidence that there is a relevant connection between the conviction and the employment, and/or if the criminal conduct was dealt with leniently by a court.

Background

Mr Silling had been employed by Corrective Services, New South Wales (CSNSW) for 15 years. In 1998 (First Incident) and in 2008 (Second Incident), Mr Silling pled guilty to common assault following disputes with his wife and his adult daughter, and was released without conviction.

After the First Incident, CSNSW warned Mr Silling that off duty behaviour might (if it was unlawful, brought CSNSW into disrepute or affected job performance) be regarded as a work-related issue. The Second Incident did not result in any internal disciplinary action being taken “due to an administrative oversight”.

In 2011 (Third Incident), Mr Silling was convicted for common assault, following another argument with his wife. Subsequently, CSNSW dismissed Mr Silling, in accordance with section 48 of the Public Sector Employment and Management Act 2002 (NSW) (PSEM Act). Section 48 provides for the taking of disciplinary action in relation to an employee who has been “convicted” of a serious offence. It does not require a dismissal, but allows for a range of disciplinary or remedial action.

Mr Silling filed an “application for remedy by dismissed employee” under section 84 of the PSEM Act, in the NSWIRC.

Decision at first instance

Commissioner Bishop decided that whilst the assaults were “reprehensible and abhorrent”, the termination of Mr Silling’s employment was harsh, unjust and unreasonable, as:

  • Mr Silling self-reported each incident of domestic violence to the Police in a timely fashion and co-operated fully;
  • the “convictions he received were all at the lower end of the scale available to the Local Court”;
  • CSNSW had “not established, on the evidence, that there was a relevant connection between Mr Silling's off-duty conduct and his employment”;
  • in relation to the objects (set out in section 41) of the PSEM Act, there was “no evidence … as to the reasons why dismissal was considered necessary and [why]… the conduct …adversely affect[s] the integrity and reputation of … CSNSW nor why it is in the public interest to dismiss a man after 15 years [of] unblemished and exemplary service”; and
  • there was evidence that Mr Silling was genuinely remorseful, had sought counselling and medical treatment which was having a positive effect, and that the dismissal “had visited significant hardship and financial detriment upon him”.

Commissioner Bishop ordered reinstatement.

CSNSW subsequently applied for leave to appeal the decision and orders.

Decision on appeal

A Full Bench found no error in Commissioner Bishop’s decision and refused leave to appeal. Backman J (with whom Stanton C and Haylen J agreed), noted that Commissioner Bishop:

  • was required to, and “undoubtedly” took into account, the “issue as to whether there was a connection between Mr Silling's out-of-hours conduct (the convictions) and his dismissal”, regarding it as “very relevant” to her consideration;
  • had appropriate regard to sections 41 and 48 of the PSEM Act; and
  • weighed up a number factors which were “all relevant to an assessment of whether a dismissal was harsh”, against the impugned conduct.

Haylen J added that:

  • “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”; and
  • CSNSW 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. The disproportionate nature of this penalty was palpable”.