Sacking of sex abuser found to be procedurally unfair but upheld by Fair Work Commission

The employer of a manager jailed for child sex abuse denied him procedural fairness and should have obtained external advice before sacking him, but the FWC has found the dismissal a proportionate response.

The manager, who had a high profile as a community leader and was active in his church, argued that his employee, a logistics company, had no reason to dismiss him after learning of his crime and claimed he was denied procedural fairness.

The manager, who worked for the company for 17 years was promoted to national sales and marketing manager in 2014 and was viewed as a leader in the business, appeared via video-link from a gaol where he is serving a 20-month sentence for sexually abusing a 13-year-old boy last Christmas.

Seeking 26 weeks’ pay for unfair dismissal, the manager argued that he had been open and honest with the company about the crime and charges he faced.

However, the company’s Chief Operations Officer said that while the manager had provided some information, alluding to a “regrettable action” it wasn’t until April, when media reports revealed he pleaded guilty to child sexual abuse, that he had a “head exploding moment” and realised the nature of the manager’s offence.

The company then told the manager to stay at home until further notice and in May summarily dismissed him for serious misconduct in breaching company policies and procedures and his employment contract.

The Fair Work Commission found provisions in the manager’s employment contract requiring him not to engage in conduct that might adversely affect the reputation or goodwill of the company or bring it into disrepute “clearly applied to conduct outside of working hours as well as conduct at work”.

Two provisions of the contract are of note. First, a paragraph headed “Duties” provided, among other things: “You must … Promote the interests of the Company and not do anything which may adversely affect the reputation or goodwill of the Company”. Second, the Code of Conduct annexed to the contract provided, among other things: “Employees must not deliberately or carelessly do anything that will result in poor quality work output or bring (the company) into disrepute”.

The Commissioner also found a “firm basis” upon which to conclude that the employee’s out of hours criminal conduct “significantly damaged (the company’s) interests in respect of its relationships with its clients and staff”.

Listing the “critical features” of the case, the Commissioner said that: because the manager is a public figure, his serious criminal conduct was “always likely to attract media attention”; child sexual abuse is “viewed with particular abhorrence in the community”; and there was widespread media coverage of his offence, including at least one referring to his employment.

It was a “predictable result” that the company’s clients and employees quickly found out about the offence once it hit the media and “unsurprising” that the company received “alarming” communications from past and present clients, the Commissioner said.

“In short, the public disclosure of [the manager’s] offence rendered his continued employment untenable,” the Commissioner said, noting that because he failed to tell the company about the charges, the company was unable to consider how it might deal with the matter before it became public.

“If [the manager] had continued to be employed and clients and staff were required to continue to deal with him, there would undoubtedly have been ongoing damage to the company’s reputation and its interests as a business and an employer.”

The Commissioner also said the manager’s decision to not disclose the details of his offence was a “deliberate and strategic one made by him in order to obscure matters adverse to his case”, while his guilty plea and conviction “necessarily involved an admission by [the manager] and a conclusion by the court that the offence element of criminal intent existed”.

“It is not open in those circumstances for [the manager] now to contend that his offence was unintentional,” the Commissioner said.

Although the dismissal was a “proportionate response to the situation the company found itself in”, he found the company denied the manager procedural fairness because it failed to notify him of the reason and therefore failed to afford him an opportunity to respond.

He noted that the company did not have any dedicated HR management specialists or expertise at the time of the dismissal and this “affected the procedures it adopted”.

But while its size meant the company should have obtained external advice about how to afford procedural fairness before deciding to summarily dismiss him, the Commissioner did not believe there was “any reasonable possibility that he could have advanced any response which might have altered the outcome”.

“It was a proportionate response to the situation in which (the company) found itself, and the financial and personal consequences of the dismissal were limited given that the employment would in any event have ended about nine weeks later due to (the employee’s) imprisonment”, said the Commissioner. He dismissed the application.

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