Unfair dismissal; private conduct

As a general rule there must be a link or nexus between conduct which occurs during an employee’s private time and his or her employment for conduct which occurs “out of hours” to justify an employee’s dismissal.

The issue whether an employer can legitimately dismiss an employee due to the conviction of the employee for a criminal offence which occurred in the employee’s own time was at the centre of  a recent decision of the Industrial Relations Commission of New South Wales.

A 63-year-old lawyer employed by Legal Aid NSW was convicted of having assaulted his wife with the District Court of NSW convicting him of of having struck his wife  of having placed his hands around her throat and “in effect choked her” causing injury to her.

After giving him an opportunity to respond to a carefully drafted letter his employment was terminated.

The lawyer took an unfair dismissal case to the Industrial Commission of New South Wales (unsuccessfully) arguing that the dismissal was either harsh, unreasonable or unjust principally on the ground that “there was an insufficient nexus between his position and the misconduct”. His case was put this way by the Comissioner.

“The applicant’s submissions were to the effect that Legal Aid had placed undue reliance on its status as an advocate in promoting awareness and prevention of domestic violence, given that the applicant was not directly involved in Legal Aid’s domestic and family violence programs. The applicant gave evidence that the vast majority of his work for Legal Aid involved drug-related crime, including armed robbery, in the District Court.”

The Commissioner rejected the argument holding that given the nature of his work, there was a sufficient nexus between his employment and his misconduct, saying

“Focussing only on the work performed by the applicant in the Criminal Law Division ignores the broader organisation commitment that Legal Aid has to address in domestic and family violence, as well as the applicant’s admitted responsibility, as a senior employee, to promote awareness and prevention of domestic violence.”

The Commissioner also found that “Legal Aid has a legitimate interest in protecting its reputation” in that, in the context of Legal Aid’s organisation and activities, his conduct had “the potential to bring Legal Aid into disrepute given the disturbing criminal acts of which he was found guilty and the serious nature of the crime”, commenting “I do not accept the applicant’s submissions that the risk of damage to Legal Aid’s reputation was overstated”. The Commissioner found, in weighing all of these matters, the dismissal was not unreasonable.

William James Sandilands v Industrial Relations Secretary on behalf of Legal Aid NSW (2018) NSWIRComm 1051 delivered 28 August 2018.