EILS Seminar: Sex, Drugs & Dishonesty

CRIMINAL LAW &
EMPLOYMENT
LAW
What are an
employee’s rights
and how do you
best protect their
interests?
1

OUR OFFICES
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When worlds collide: criminal & employment law

OUR HISTORY
Founded in 1919
Maurice Blackburn – distinguished lawyer and Labor member of Parliament
Dedicated to worker’s rights
▪ defense of underprivileged groups
▪ determined to make a genuine difference for people who need help
Fight hard for the best possible outcome
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OUR SERVICES
 Employment & Industrial Law
 WorkCover
 Road Accident Injuries
 Medical Negligence
 Asbestos Diseases
 Superannuation & Disability Insurance
 Public Liability
 Faulty Products
 Comcare
 Will Disputes
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“We believe that fighting against unfair treatment
on behalf of those who are vulnerable is amongst
the most valuable work a law firm can do.”
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Social Justice Practice

7-ELEVEN WORKERS WHO HELPED EXPOSE
WAGE FRAUD GET PAID
“Two former 7-Eleven workers who played a key role in exposing rampant
underpayment at the convenience store chain have received their back pay while
another worker is expecting to receive $270,000 in unpaid wages from the
company.”
14 February 2016
Maurice Blackburn Lawyers, CFMEU presentation 25 August 2016
6

7-11 CLAIMS UPDATE
• 72 claims have been submitted to the Panel/the Program;
• The total value of submitted claims is approximately 6 million dollars;
• 28 claims have received determinations from the Panel. Together these
determinations come to $786,324.56 in underpayments – payments which
have now been made to our clients;
• We have 12 staff (including two-full time paralegals) currently preparing at
least another 41 claims to submit to the Program;
• This is at no cost to the claimants – MB is conducting these matters pro-bono
as part of our social justice practice.
Maurice Blackburn Lawyers, CFMEU presentation 25 August 2016
7

WHAT ARE AN
EMPLOYEE’S RIGHTS
AND HOW DO YOU BEST
PROTECT THEIR
INTERESTS? 8

WHAT IS THE CURRENT STATUS OF THE
EMPLOYMENT RELATIONSHIP?
As McHugh and Gummow JJ observed in Byrne v Australian Airlines (1995) 185
CLR 410:
"The evolution in the common law as to the relationship of employment has been
seen as a classic illustration of the shift from status (that of master and servant)
to that of contract (between employer and employee)."
9

WHAT IS THE TEST?
In Hospital Employees Federation of Australia v Western Hospital (1991) 33
AILR 249 Lawrence DP observed:
"The conviction of an individual for a criminal offence does not necessarily have
any effect upon that person's employment The question of the relevance of a
conviction or an employee's alleged misbehaviour to the employee's work should
be considered in terms of whether or not the employee has breached an express
or implied term of his or her contract of employment. Whether events occurring
outside the actual performance of work will be relevant to the employment
relationship will vary from case to case. For example, an accountant who has
committed an act of dishonesty (for which he may have been charged and
convicted) in the course of some activity outside his employment might be said to
have breached a term of his contract of employment."
10

FRUSTRATION OF CONTRACT
• F.C. Shepherd & Co Ltd v Jerrom [1987] ICR 802; cited in Rose v Telstra
Corporation Ltd (1998) 45 AILR 3-966; [1998] IRCommA 1592; [1998] AIRC
1592
• If attendance at work for a significant period is precluded because an
employee has been convicted of a serious offence and imprisoned, then the
contract of employment may be brought to an end by the operation of law due
to frustration.
11

THE CRITICAL TEST – THE LINK BETWEEN
EMPLOYMENT AND THE OUT OF HOURS
CONDUCT
Rose v Telstra (1998) 45 AILR 3-966; [1998] IRCommA 1592; [1998] AIRC
1592; cited with approval in Farquharson v Qantas Airways Ltd (2006) 155 IR 22,
30
Held:
1. ‘The conduct must be such that, viewed objectively, it is likely to cause
serious damage to the relationship between the employee and employer; or
2. The conduct damages the employer’s interests; or
3. The conduct is incompatible with the employee’s duty as an employee.’
4. In essence, the conduct complained of must be of such gravity or importance
as to indicate a rejection or repudiation of the employment contract.
12

WHAT DOES THIS MEAN?
• An employee may be dismissed in certain circumstances for criminal conduct
out of hours where that conduct offends their duty of fidelity;
• Not all situations where an employee is charged with a criminal offence
outside of work hours provides lawful basis to dismiss an employee;
13

DEETH V MILLY HILL PTY LTD (2015) 254 IR 123;
[2015] FWC 6422
Held by SDP Hamberger:
• The starting point must be that an employee does in her or his own time is a
matter for her or him. There is no presumption that a criminal conviction alone
is a valid reason for termination of employment, particularly where the criminal
offence was committed outside of work.
• Even conduct outside of work including criminal offences dopes not, alone,
warrant dismissal. There must still be a relevant connection between the
criminal activity and the employee's employment.
14

DRUG USE AND
WORKPLACE TESTING –
WHAT ARE THE RULES?
15

What is a Workplace?
16

What are an Employer’s obligations?
17

SHELL REFINING (AUSTRALIA) PTY LTD V
CFMEU [2008] AIRC 510
At first instance per SDP Hamberger at [117]:
‘Neither party in this dispute sought to argue that random testing for drugs (or
alcohol) was unjust or unreasonable. However both parties also recognise that
random testing is an intrusion on the privacy of the individual which can only be
justified on health and safety grounds. The employer has a legitimate right (and
indeed obligation) to try and eliminate the risk that employees might come to
work impaired by drugs or alcohol such that they could pose a risk to health or
safety. Beyond that the employer has no right to dictate what drugs or alcohol its
employees take in their own time. Indeed, it would be unjust and unreasonable to
do so.’
18

KOLODJASHNIJ V LION NATHAN T/A J BOAG
AND SON BREWING PTY LTD 2010) 195 IR
279; [2010] FWAFB 3258
• This case is an example of when a person can be dismissed for out of hours
conduct. The Employee was charged with drink driving.
• The Employee had a faultless employment, but the company had a
“responsible drinking policy”
• Held (at first instance and on appeal to full bench):
• The Employer’s reliance on potential reputational damage was a valid reason
for the dismissal; and
• No actual harm to the employer needs to be demonstrated (per Deegan C at
first instance)
19

WISE V MILDURA ABORIGINAL CORPORATION
INCORPORATED [2013] FWC 6177
• Wise dismissed after a criminal check showed he had been charged with
possession of ecstasy (2 tablets) and unlawful possession of explosives (a
firecracker). Guilty on both counts but charges so minor that no conviction
recorded, Wise was fined $350. Note – despite no conviction being recorded
the charges and fine came up on a criminal check.
• Held: No link between conduct complained of and employment. Even if there
was a sufficient connection the finding of ecstasy tablets 18 months old is not so
serious as to suggest a repudiation of the contract of employment.
20

COLIN WRIGHT V AGL LOY YANG PTY LTD
[2016] FWCFB 4818 (2 AUGUST 2016)
• Colin Wright was a mine operator who was sacked after allegedly telling police
he had smoked synthetic cannabis before crashing his car following a
nightshift.
• Wright had been counselled regarding his drug use and on a number of
occasions and had been caught smoking a bong a work which resulted in him
receiving a first and final warning.
• Wright had finished a nightshift at the power station, left the carpark, and then
shortly after crashed his car through a number of fences and into a house.
• When police arrived he allegedly admitted that he had “smoked synthetic
opium.” This purported admission was the main controversy in this case.
21

COLIN WRIGHT V AGL LOY YANG PTY LTD
[2016] FWCFB 4818 (2 AUGUST 2016)
CONT’D
• The officer contacted Wright’s employer shortly after the accident and stated
that Wright had said that he had smoked synthetic cannabis.
• This prompted the employer to commence an investigation and terminate
Wright’s employment. Wright later denied to his employer that he consumed
synthetic cannabis prior to the accident.
• The Fair Work Commission held at first instance held that Wright had, on the
balance of probabilities, smoked synthetic cannabis in the carpark when he
left work, or, during the drive from work. VP Watson dismissed his application
for unfair dismissal
• On appeal Wright argued that on common law principles that his admission to
the police should be given no weight. His appeal was unsuccessful.
22

CORWYNN OWENS V BYNOE COMMUNITY
ADVANCEMENT COOPERATIVE SOCIETY
LIMITED T/A BYNOE CACS LTD [2016] FWC 5274
• Mr Owens was employed by Bynoe CACs Ltd, an organisation that provided a
range of services to remote aboriginal settlements. His duties included
engaging with disengaged young people in the community, who faced, or
whose parents faced, serious drug and alcohol problems amongst other social
difficulties.
• Mr Owens tested positive for drugs or alcohol at work and was subsequently
terminated.
• The Behaviour and Code of Conduct policy stated that on a first offence, the
employee should be send home without pay. This was Mr Owen’s first offence.
• Owens Admitted taking marijuana and drinking alcohol at a local sporting
event the weekend prior to his test.
23

CORWYNN OWENS V BYNOE COMMUNITY
ADVANCEMENT COOPERATIVE SOCIETY
LIMITED T/A BYNOE CACS LTD [2016] FWC 5274
• The employer indicated that notwithstanding the wording of the policy, it had
updated the policy when it verbally stipulated that it had zero tolerance to
drugs and alcohol that anyone testing positive would be terminated [at 15].
• The dismissal was upheld as the employer had a very high standard of
conduct for its employees given the context within which it operated.
• Mr Owens job was to work with families and children from dysfunctional
homes, in which drug and alcohol abuse were prevalent, and it was repeatedly
discussed that employees themselves had to be drug and alcohol free, if they
were going to be generally committed to dealing with what was described as
rampant drug use in the community (which had historically concerned abuse
of marijuana but had now exhibited issues with methamphetamines).
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AFL ILLICIT DRUGS POLICY
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AFL illicit drug policy:
Strike 1: Suspended $5,000 fine, counselling
Strike 2: Four-match suspension, club informed, name made public
Strike 3: 12-match suspension

CAN DRUG POLICIES SAVE A JOB?
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The AFL illicit drug policy actually does not lead to the termination of an player.
Indeed, contrasted with the Boags case, the highest penalty is a 12 match
suspension.

CAN AN EMPLOYEE BE
DISMISSED FOR
ALLEGED DISHONESTY
OUTSIDE OF WORK?
27

HOW NON-WORK RELATED TRAFFIC
CONVICTIONS LED TO DISCIPLINARY ACTION
Our client had a significant traffic history. He worked for the Department of
Justice in a fairly senior role.
He was in a perpetual cycle of driving without a licence and being caught driving
without a licence. He was subject to a 2 year licence suspension due to his most
recent contravention of the TORUM.
Our client instructed a criminal solicitor in relation to his most recent driving
conviction, and, provided detailed instructions. He created a false company that
he work for, obscured the fact that he worked for DJAG, and, fraudulently
created a reference from a fictitious employee supervisor.
He was later charged with perjury. Once charged with perjury, his employer
investigated his employment and commenced an investigation into his conduct ,
and subsequently, disciplinary action.
28

HUSSEIN V WESTPAC BANKING CORPORATION
(1995) 59 IR 103
1) Ismaet Hussein plead guilty to a charge of obtaining property by deception
and was convicted. He was also convicted in relation to some of some firearm
offences.
2) Hussein was a migrant service officer for Westpac who worked at a the
Morland branch. He spoke Greek and Turkish and part of his duties were to
increase business in those communities. He was in a position of trust.
3) The “obtaining property by deception” conviction related to withdrawals from
an ANZ bank, not his employer, however, given his position of trust at
Westpac, it was held that there was a relevant connection between the
criminal convictions and his employment.
4) Due to the relevant connection, the dismissal was held to be for a valid
reason and not harsh, unjust or unreasonable.
29

DAVID TREGEAR V QANTAS AIRWAYS LIMITED
[2010] FWA 8985
Tregear, an international flight attendant, was staying during rest time between
flights at a hotel paid for by Qantas.
Mr Tregear entered the hotel lobby and proceeded past the reception counter to
the upper foyer level lifts. Near the lifts were couches and beside one was a table
underneath which were the boots. Without making any inquiries as to their owner,
Mr Tregear took them to his room and brought them back to Australia with the
intention of giving them to his daughter.
Mr Tregear maintains that at the time he believed the unattended boots were
discarded or abandoned and ‘were no longer the property of anyone’. His
decision to take the boots ‘arose from poor judgement on my part caused by
sleep deprivation’. 5
Another hotel guest subsequently reported to the hotel that her boots were
missing. The hotel checked the CCTV footage which showed Mr Tregear picking
up the boots from under the table and taking them into the elevator.
Despite his explanation of sleep deprivation, stress, no prior warnings, and not
being at work, the dismissal was held to be fair.
30

OFFICE OF THE AUSTRALIAN BUILDING AND
CONSTRUCTION COMMISSIONER V MR BRETT
HARRISON [2010] FWA 1528
A Union organiser convicted of 13 counts of fraud. If the Organiser did not have
a permit he would not be able to attend site’s, usually an inherent requirement of
an Organiser’s role.
ABCC sought to have ROE permit revoked as the convictions were related to
dishonesty, and that the organiser was therefore not a ‘fit and proper person’ to
hold a permit.
Held by Cargill C:
The convictions did not affect the organiser’s ability to exercise his entry rights
appropriately.
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Morning tea
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Please help yourself to refreshments and join us back in ten minutes.

WHAT ACTION CAN AN
EMPLOYER TAKE
AGAINST AN EMPLOYEE
FOR SEXUAL
MISCONDUCT AT OR
OUTSIDE WORK?
33

What is a Workplace in Sexual Harassment Law?
34

SEXUAL HARASSMENT
Sexual harassment is any unwanted or unwelcome sexual behaviour, which
makes a person feel offended, humiliated or intimidated.
The legal test for sexual harassment has three essential elements:
• the behaviour must be unwelcome;
• It must be of a sexual nature;
• It must be such that a reasonable person would anticipate in the
circumstances that the person who was harassed would be offended,
humiliated and/or intimidated.
Sexual harassment in employment is not necessarily limited to the workplace and
may also take place in locations associated with work, such as conferences and
training centres, restaurants for work lunches, hotels for work trips or office
parties.
35

SEXUAL HARASSMENT- WORKPLACE?
Sexual harassment in employment is not necessarily limited to the workplace and
may also take place in locations associated with work:
1. Conferences;
2. training centres;
3. restaurants for work lunches;
4. hotels for work trips; and
5. office parties.
Some types of harassment may also be offences under the criminal law such as
sexual assault and stalking.
36

MR AA V BLACKHEATH AND THORNBURGH
COLLEGE [2005] QIRCOMM 151
• AA, a teacher, was charged with one count of sexual assault of a former
student. This charge was substituted with a charge of indecent treatment of a
child under sixteen years of age. A committal hearing was held but DPP
subsequently entered a nolle prosequi, so no outstanding charges remained.
• In the civil matters, the applicant was suspended, and then summarily
dismissed following the committal hearing. At all times the Applicant
maintained registration with Teachers Registration Board of QLD.
• Held: dismissal was harsh, unjust or unreasonable as Respondent did not
provide reasons for summary dismissal
37

THE WORK CHRISTMAS
PARTY
Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156
Vice President Hatcher held that Mr Keenan had, in fact, been unfairly dismissed
for various reasons, including:
[97] Mr Keenan's behaviour following the Christmas function was not relevant to
his employer as it was not within the place of work and did not sufficiently impact
upon Leighton and its employees;
Other factors included:
1) Keenan's advances towards his female colleague, while unwelcome, did not
constitute sexual harassment and were not a valid reason for dismissal;
[133] Leighton’s took no steps to ensure the responsible service of alcohol during
the Christmas function; and
[133] Keenan was not cautioned over the amount of alcohol he was consuming.
38

GREGORY V QANTAS AIRWAYS LTD [2016]
FWCFB 2108
Facts:
Airline pilot’s employment terminated after touching the breast of a colleague
whilst in Santiago.
Pilot claimed to have had drink spiked and not responsible for his actions.
No finding of unfair dismissal at first instance.
Held:
[30] The claim of drink spiking, including from experts, was not persuasive.
[73] No appealable error found in Commissioner Cambridge’s decision at first
instance. Finding upheld.
39

Disciplinary and Professional Conduct Matters
40

REGISTRATION AND LICENCING
Many types of employment are governed by specific legislative schemes and
professional bodies. For example:
1. Medical Practitioners (For example, Nurses, Doctors, radiographers)
governed by Australian Health Practitioner Regulation Agency, we act for the
Queensland Nurses Union (QNU) and have experience with AHPRA matters.
2. Non-registered and registered health practitioners, such as sonographers and
nurses, are monitored by the Office of the Health Ombudsman (OHO). We act
for the QNU and have experience with the OHO;
3. Lawyers - the Legal Services Commission;
4. Public Servants and Local Government Employees;
5. Firefighters, police and teachers; and
6. Accountants.
41

HEALTH CARE COMPLAINTS COMMISSION V
DR NAIR [2013] NSWMT 19 (2 DECEMBER 2013)
In some professions, conduct such as taking drugs or being charged with drug
offences can lead to disciplinary action and sanctions.
Health Care Complaints Commission v Dr Nair [2013] NSWMT 19 (2
December 2013) is an example of drug charges leading to disciplinary sanction.
Dr Nair was convicted of manslaughter. He had engaged two escorts and plied
them with cocaine and alcohol until one of them reached a state in which she
desperately required medical attention. Another escort had passed away with him
after ingesting a large amount of a cocaine seven months prior to this more
recent event.
He was initially charged with murder but then pleaded guilty to charges of
manslaughter. He was sentenced to 8 years, with non parole of 5 years.
42

HEALTH CARE COMPLAINTS COMMISSION V
DR NAIR [2013] NSWMT 19 (2 DECEMBER 2013)
Dr Nair was a neurosurgeon, however, as a result of the conditions placed upon
his registration, and his subsequent breach of the conditions, his registration was
terminated and he could no longer practise medicine.
Medical Tribunal of NSW stated the Tribunal’s role is not to punish but to make
protective orders of both the public and medical profession.
It was ordered that he not be permitted to reapply for registration for 10 years.
Even if he could reapply there would be a very high bar to re-registration.
43

IBRAHIM V WALTON [1991] NSWCA 152
Ibrahim made an application for judicial review of a decision by the NSW Medical
Tribunal not to adjourn a hearing of a disciplinary matter until related criminal
proceedings were finalised. Ibrahim’s judicial review application was dismissed
by the court.
Hope AJA : The Tribunal had an obligation arising from section 32W of the
Medical Practitioners Act, inter alia, ‘to balance the interest of the public in the
two respects to which I have referred to and also to take into account the
important interest of the respondent in his right of silence, as well as the other
circumstances of the case, and as a matter of discretion to decide whether or not
to proceed with the complaint before the criminal proceedings are here.’
In some cases it is obvious that the public interest in protecting patients should
be given priority to that of the person complained about who is also subject to the
criminal proceedings.
However, the Court refused to grant the adjournment of the medical board
hearing. 44

SCOPE OF A COURT OR TRIBUNAL’S POWER TO
STAY A DECISION
A decision that may be stayed pending review includes:
• Cancelling registration or authority to practice;
• Imposing conditions on a person’s practice;
• Imposing a disciplinary sanction;
• Dismissing an officer’s employment;
• Imposing some form of monetary sanction.
When a decision is stayed, the status quo is maintained.
45

‘PARTIAL’ STAYS –
CONDITIONS AND UNDERTAKINGS
• A court or tribunal may be willing to grant a stay subject to certain conditions
or undertakings being imposed on an applicant.
• Legislation will stipulate whether the court or tribunal is able to impose a stay
with conditions or undertakings.
• Onus will be on the applicant to identify appropriate conditions and to
persuade the tribunal that these will be effective.
• See, for example, ATP Group Pty Ltd and Tax Practitioners Board [2015] AATA
225
46

TIMING OF THE STAY
APPLICATION
• Timing of the stay application is important.
• Should generally be brought promptly and any delay explained.
• Normally filed as an interlocutory application within substantive proceedings
which are on foot to review a disciplinary sanction.
• Tribunals have not been sympathetic where, for example, a number of months
have elapsed after the decision and an application for review commenced -
Tracey v Medical Board of Australia [2014] QCAT 684.
• Timing between conduct alleged and disciplinary action being taken is also
important - Tanari and Migration Agents Registration Authority [2005] AATA
419.
47

Admissions and the Right to Silence
48

THE RIGHT TO SILENCE
• Employers are able to direct their employees as long as that direction is lawful
and reasonable. An Employee has a common law obligation to follow those
directions.
• An employee is not required to follow an unlawful direction, such as a direction
to conduct a criminal offence.
• What is reasonable is essentially a question of fact and balance and will be
controlled by considerations arising from “the nature of the employment, the
established usages affecting it, the common practices which may exist and the
general provisions of the instrument [such as an award or statute] governing
the relationship”.
• What protection does an employee have from making admissions when
criminal matters are also linked to their employment and disciplinary matters?
49

DISMISSED FOR REFUSING TO ANSWER
QUESTIONS
Abdulrahim v QBE Management Services Pty Limited [2016] FWC 2985
• An employee who refused to answer his employer’s (QBE) questions about an
insurance claim he had made (to QBE) that could have been fraudulent was
fairly dismissed.
Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155
• A driver sacked for refusing to answer questions about his personal business
and potential conflicts that could arise with his employment was validly
dismissed.
Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374
• Collier J at 143:
▪ “I do not accept that the privilege against self-incrimination was capable of being
enlivened in the workplace investigation the subject of these proceedings. As the first
respondent has correctly submitted, the requirement that the applicant cooperate in the
investigation, including answering questions, was not unlawful. There was no exposure
to a civil penalty in the circumstances of the investigation.”
50

DISMISSED FOR REFUSING TO ANSWER
QUESTIONS CONTINUED
Murray Irrigation Ltd v Balsdon [2006] NSWCA 253
• Balsdon was charged with a number of criminal offences – namely accepting
bribes during his employment. After criminal charges were laid, the employer
notified him of these matters and requested responses. Balsdon refused to
respond to the employer’s questions, exercising the right to silence, as he did
not wish to incriminate himself in any criminal investigation. His employment
was subsequently terminated. The Court found that Balsdon’s dismissal was in
breach of the employer’s obligation not to dismiss on ‘harsh, unjust and
unreasonable’ grounds – this obligation had been incorporated into his
employment contract. Damages awarded.
Patty v Commonwealth Bank [2000] FCA 1072
• Patty was accused of stealing from an ATM. Criminal investigations were
commenced then dropped by police. His employer directed him to respond to
a 11 allegations and he refused. He was later terminated as he failed to
provide a reasonable explanation to the allegations. It was held that this was
not a valid reason for dismissal.
• After a further hearing, Patty was reinstated to his previous position . 51

BAFF V COMMISSIONER OF POLICE (NSW)
(2013) 234 A CRIM R 346
• Police are regulated by specific legislative instruments. This case arose in that
context.
• Facts: Baff was suspected of a criminal offence for his actions on duty
although he had not been charged. He was directed to attend a departmental
‘non criminal’ interview by the Commissioner of Police. The plaintiff refused to
answer questions, citing the common law privilege against self-incrimination.
• Court found that privilege against self incrimination was not abrogated by the
Act or Regulations that governed the non-criminal investigative process.
52

HARDCASTLE V COMMISSIONER OF POLICE (1984) 53
ALR 593
• Double Jeopardy
• Federal Police Disciplinary Tribunal found Sen. Const. Allan guilty of six
disciplinary offences each consisting of improper conduct in his official
capacity as defined in Australian Federal Police (Discipline) Regulations, par.
18(1)(a) for assaulting various citizens. Det. Sen. Const Hardcastle found
guilty of being knowingly concerned in above matters.
• Hardcastle appealed the decisions under the ADJR Act on two grounds, the
second of which was ‘that the institution of proceedings for a disciplinary
offence where the conduct alleged amounts to a breach of the criminal law
exposes the member to double jeopardy.’
• Court held no room for double jeopardy because the two proceedings are of
essentially different character and result. Once results in criminal sanction, the
other disciplinary action in employment.
53

DOUBLE JEOPARDY IN DISCIPLINARY
PROCEEDINGS
Earlier criminal proceedings no bar to subsequent disciplinary proceedings.
• Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
• Whether particular conduct has been established beyond reasonable doubt is
not the same question as whether that conduct has been established on the
balance of probabilities.
54

Any questions?
55

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