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True or False

My Employee Has Been Charged with a Criminal Offence. This Means I can Terminate Their Employment.

False.

You cannot automatically terminate the employment of an individual who has been charged with a criminal offence. Rather the ability to do so will depend on:

  • The Nature Of The Crime That Has Been Committed

Consideration needs to be given to both the nature of the crime and whether there is a genuine connection between the offence that has been committed, particularly where the incident occurred outside of the workplace, and the individual’s employment.

If the employee has been charged with an offence outside of work, caution needs to be taken before terminating employment as there are limitations on your ability as an employer to take disciplinary action in relation to out of hours conduct.

If the employee has committed an offence at work, you should deal with the matter by applying your established disciplinary procedures.

  • Whether The Employee Has Been Charged Or Convicted.

If a person has been charged, they have not yet had an opportunity to defend their position and have not yet been found guilty of an offence. As such, terminating their employment could be viewed as unfair and rash.

Where a criminal conviction does occur, irrespective of the circumstances, there is a requirement as an employer to ensure that a fair and reasonable process is followed prior to a termination of employment taking place.

If you have any questions regarding an employee who has been charged or convicted of a criminal offence, or the required processes that are to be undertaken to manage such a situation, please do not hesitate to contact HR Advice Online via email advice@hradviceonline.com.au or by calling 1300 720 004.

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