Full Bench of the New South Wales Industrial Relations Commission 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”.

The employee had been employed by the employer for 15 years.  The employee pleaded guilty to two offences relating to domestic violence and the matters were dealt with by the relevant court without conviction.  The employee had been warned after the first offence that off duty behavior might, in certain circumstances, be regarded as a work related issue.  Following a conviction for a third offence, the employee was dismissed.  The employee filed an unfair dismissal application.

The Commission reinstated the employee on the basis that:

  • he had a long unblemished employment record;
  • there was “no acceptable evidence that the performance of his duties would be compromised by his recent out-of-hours criminal history”; and
  • he was genuinely remorseful and had sought counseling and medical treatment, which was having a positive effect.

The employer appealed to the Full Bench.  The Full Bench found no error in the decision adding 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”.  The Full Bench held that the employer 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”.

Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling [2012] NSWIRComm 118 (31 October 2012)