Highlighting the difficulties faced by employers, the Fair Work Commission recently upheld the dismissal of a supermarket employee who objected to working alongside a co-worker with a criminal record in Tiffany Stodart v The Employer [2022] FWC 277.
The employee decided that she would undertake an internet search about her work colleague after feeling uncomfortable working alongside him. During this search, she uncovered that he had previously been convicted of a historic sex offence.
After this discovery, the employee insisted that her colleague ‘be sacked’ and alleged his behaviour was making younger staff members feel uncomfortable. The employee was unable to provide any specific evidence to support her allegations. The employer maintained (correctly in our view) that it would be unfair to dismiss her colleague without any evidence of misconduct in the workplace.
However, the employer did not just ignore this employee’s concerns. Instead, it went to significant lengths to accommodate her by offering her a transfer to a different store and different shifts in different departments to minimise her contact with the employee with the criminal past.
Unfortunately, the employee remained dissatisfied by her employer’s proposed solution and went on to make various criticisms of her employer for which she received a first and final warning. The worker continued to clash with her employer over its response to her concerns, which ultimately lead to her dismissal.
In dismissing the employee’s unfair dismissal claim for, the Fair Work Commission stated that "the unfair dismissal jurisdiction is not a forum for judgement about broader public policy issues that concern re-entry into the workforce of persons with a criminal record … or practices employers could adopt when employing such persons.”
While the employer was ultimately successful in defending this unfair dismissal application, this matter illustrates the tricky situations that employers can find themselves in and the challenges they face in navigating the legal, industrial and ethical implications of employing persons with criminal convictions.
This article was contributed to by Law Clerk, Maida Mujkic.