In Tasmania, approximately 10,000 people are charged with criminal offences each year, with 48% of charges concerning theft or acts intended to cause bodily injury.
For employers, addressing allegations that an employee has engaged in criminal conduct is a delicate task – one that requires balancing an employee’s right to silence in the criminal proceedings, while protecting the safety and wellbeing of the workforce. Failing to take timely and appropriate steps can jeopardise the safety of employees, impact organisational profitability, and harm the employer’s reputation.
In this article, we explore the challenges faced by employers when handling criminal conduct within their ranks and offer insights into effective strategies for managing such situations.
First steps
A no-show at work, a tip off from a colleague, a knock on the door by uniformed officers – there are a number of ways that an employer may discover that an employee has been charged with criminal conduct.
Regardless of how an employer becomes aware of allegations of criminal conduct, once aware they should:
- Gather preliminary information – including about whether the employee is being held in custody or is otherwise prevented from attending the workplace, any bail conditions the employee is subject to, what conduct they are alleged to have engaged in, and whether the conduct is alleged to have occurred during or outside of work hours.
- Determine whether there is any link to the employment – sometimes allegations of criminal conduct will be directly relevant to employment. For example, where an employee is alleged to have assaulted another employee, or where the allegation has attracted media attention and is impacting the reputation of the business. Other allegations are not going to be relevant to work and do not necessarily need to be investigated.
- Conduct a risk assessment – it is important for an employer to consider ways to manage any business risk (including to health and safety) while allegations are investigated, particularly where it involves an allegation of violence. Depending on the alleged conduct and where it took place, an employer might direct the employee to work from a different location or, if the employee’s contract allows it, suspend the employee until an investigation has been completed.
- Not jump to conclusions – it is important to remember that just because an employee has been charged by police does not necessarily mean that the conduct occurred, or that it occurred in the way the police say it did.
Investigating criminal conduct – parallel investigations
While it may be tempting to wait until the police investigation and criminal proceedings are complete before taking action, these can take months or even years to finalise. Employers who wait for these processes to conclude before commencing their own disciplinary action can be left in a precarious position.
If an employee is alleged to have engaged in conduct that can adversely impact the workplace, including criminal conduct, an employer should investigate just as they would any other allegations of employee misconduct. That means that they must:
- Secure the evidence – emails, file notes, and witness statements can be crucial pieces of evidence, not only for employers conducting workplace investigations, but also for those involved in related criminal proceedings. Employers may be required to produce this evidence to police, prosecutors or defence lawyers as part of a criminal prosecution so it is important that it is retained and kept safe. Employers should consider making copies of original documents to assist their own investigative processes, as it is not uncommon for original documents to be kept by police or the courts until the end of the criminal proceedings.
- Apply the appropriate standard of proof – unlike in criminal proceedings where the prosecution has to prove the alleged conduct ‘beyond reasonable doubt’, when investigating criminal conduct as part of a workplace investigation, the standard of proof to be applied is on the ‘balance of probabilities’. Determining whether conduct occurred on the balance of probabilities is not a simple estimate of probabilities (e.g. it is more than 50% likely that it occurred), but rather it requires the employer to be actually persuaded by the evidence that the conduct occurred. The seriousness of the allegation and the gravity of any potential consequences if the conduct is proven are both relevant factors when determining whether the evidence is sufficient to persuade the employer that the conduct occurred.
- Engage with the employee – while it is likely that an employee who is subject to criminal charges will choose not to participate in an employer’s investigation, they must still be given the opportunity. This includes notifying the employee of the allegations that have been made and giving them the opportunity to provide submissions and evidence in response. Importantly, employers should encourage employee’s to get their own legal advice before responding, and give the employee enough time to get that advice. While an employer must offer this opportunity to the employee, they cannot force the employee to participate as doing so would impact their right to silence in the criminal proceedings.
Proven criminal conduct – what now?
Although employers cannot make decisions about criminal responsibility, if after an investigation they are satisfied that the allegations have been proven, they may make a finding that by engaging in the conduct the employee has breached one of the employer’s policies or protocols.
In some instances, criminal conduct won’t breach the employer’s policies or protocols. It is therefore important that before commencing an investigation or taking disciplinary action against an employee, that employers have a well-defined conduct framework in place which outlines appropriate behaviour both in and outside the workplace. Employers may also consider updating existing policies to require employees to disclose when they have been charged with criminal conduct, and including a term in employment contracts that allow for termination when an employee has been charged with criminal conduct that may affect the reputation of the employer.
For further information on disciplining employees, including for out of hours conduct, please see:
Conclusion
Investigating allegations of criminal conduct against employees, either alone or while criminal proceedings are ongoing, are complex and involve multiple competing priorities. If you require advice or would like assistance investigating allegations of criminal conduct in the workplace, please contact us.
| Charli Barclay Senior Associate T: (03) 6235 5125 E: cbarclay@pageseager.com.au |
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| Emily Creak Principal M: 0400 955 183 E: ecreak@pageseager.com.au |
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Published: 26 July 2024
