'Public figure' dismissed for sexual assault of boy

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'Public figure' dismissed for sexual assault of boy

A sales and marketing manager who was jailed for child abuse was fairly dismissed, despite procedural failings, the Fair Work Commission has ruled.

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A sales and marketing manager who was jailed for child abuse was fairly dismissed, despite procedural failings, the Fair Work Commission has ruled.

Bluestar Global Logistics fired Mr 'W' on 4 May 2016 after he pleaded guilty on 1 April 2016 to a charge of engaging in an act of sexual penetration with a 13-year old boy. 

He was later sentenced to 20 months in prison.

Mr W committed a serious sexual offence against the boy on Christmas Day 2015, which was subsequently reported to police and Mr W was charged on 28 December.

On 5 January 2016 he sent an email to managers saying there had been “a traumatic incident which triggered a series of events,” and that he hoped to resume work on 12 January 2016. 

Deliberate blurring of the truth


In the weeks and days leading up to his dismissal, it is clear Mr W, while superficially making disclosures to his employer, did his best to deliberately confuse and blur the actual truth. 

“It is clear that… Mr W did not disclose that he had been charged with a serious offence and had already admitted to the police that he had sexually abused a child,” said vice president Hatcher. 

“Mr W, who is clearly a very articulate and intelligent person, was expressing himself in a way which gave the pretence of disclosure while at the same time casting a veil over what had actually happened.”

The guilty plea on 1 April 2016 attracted the interest of a journalist from the Herald-Sun newspaper, presumably because of the nature of Mr W’s public persona. 

Public figure


“In order to understand the basis upon which Mr W was dismissed,” VP Hatcher wrote, “it is necessary to explain one important aspect of his personal background, namely that he has been for much of his adult life a public figure.

"In 1986 he founded the Streetwork Project program in Adelaide to help exploited children. He was appointed a Multicultural Affairs Commissioner in Victoria in 1991… he has been involved in a number of public campaigns against racism and violence… in 1995 he was awarded the Order of Australia, and in 1996 he won the Commonwealth Heads of Government Violence Prevention Award.
"He… has written numerous newspaper columns on various topics concerning human rights… he held an advisory role with the NSW Police until after the commission of his offence. He was also regarded as a leader in his church.” 

The journalist wrote an article on 4 April and that night Mr W emailed a link to the story to the managing director of Bluestar Global Logistics. 

The following day, the managers sent Mr W home fearing how members of staff would react to Mr W upon learning the news. They were also worried customers might believe that Bluestar condoned the actions of Mr W if he continued working in the office that day. Mr W protested but, nonetheless, he was sent home. 

A further, detailed story appeared in a national newspaper on 6 April. 

Customers react


The company began receiving “multiple” phone calls from customers “expressing concern about the commercial relationship with [Mr W]”. 

The managers then instructed Mr W to stay at home and that he would be paid from accrued annual and long service leave, although he was later paid from normal pay on the basis of advice from the Fair Work Ombudsman. 

Meanwhile, Mr W complained to Bluestar that his mental health was deteriorating owing to his “home confinement” and he asked to work from home. 

On 4 May a senior manager phoned Mr W at home and stated that Bluestar had resolved to dismiss him and that his employment would be terminated that day.

The next day Mr W lodged an unfair dismissal application. A few days later, on 10 May, Mr W received a formal letter of summary dismissal from the company. That letter stated that Mr W’s conduct breached contract clauses relating to personal and inappropriate behaviour, company values of honesty and integrity and that his conduct caused a serious and imminent risk to the reputation, viability and profitability of the business. 

Goodwill and reputation clauses


It is important to note that Mr W’s contract of employment contained goodwill and reputation clauses – “You must... not do anything which may adversely affect the reputation or goodwill of the company” –  while the company code of conduct said, “Employees must not deliberately or carelessly do anything that will… bring [Bluestar] into disrepute”.

In reviewing the case, VP Hatcher ruled that the “mere fact that a person has committed a criminal act outside of working hours does not necessarily mean that there is a valid reason for the person’s dismissal by his or her employer”.

He referred to earlier case law that set out the criteria for a dismissal to be valid in the event of criminal conduct outside of and otherwise unrleated to work. Effectively, the employer must be able to answer 'yes' to the questions below about the crime(s).

Is it/are they: 
  • likely to cause serious damage to the relationship between employer and employee?
  • damaging to the employer’s interests?
  • incompatible with the employee’s duty as an employee?
  • of such seriousness as to indicate a rejection or repudiation of the employment contract?
VP Hatcher then ruled that, in this particular case, all four elements were fulfilled owing to: Mr W’s public profile; the widespread media coverage (which lead to identification of Mr W with the company); Mr W being a primary point of contact between the company and its customers; the the community's abhorrence of child sexual abuse; and the reaction of the staff to the revelations. 

Fundamentally valid reason 


He added that Mr W’s criminal conduct had the effect of irreparably damaging relationships with clients and staff, which rendered his continued employment untenable. “I consider that was a valid reason for dismissal,"he said. 

The issue of procedural fairness was then considered – Mr W was clearly not afforded procedural fairness as he was: not given an opportunity to respond; not notified of the reason for dismissal prior to being dismissed; was not given the opportunity to have been given a support person.

Additionally, while the company did not have HR expertise it could – and should – have brought that expertise in for the dismissal. 

However, the issue of procedural unfairness was swept aside by VP Hatcher as, about two months after the dismissal, Mr W was sent to prison for his crimes. 

“Had Mr Wakim been afforded procedural fairness, I do not consider that there is any reasonable possibility that he could have advanced any response which might have altered the outcome,” VP Hatcher said.

He ruled that the dismissal was valid irrespective of the point of procedural fairness.

What does this means for employers and managers?


Companies should ensure that ALL employees are subject to ‘goodwill and reputation’ clauses. 

But, remember, not all crimes will warrant immediate dismissal

It may be that a traffic offence (although it would depend on the nature of the offence) by, say, a data analyst – who does not deal with company customers, often works remotely, does not come into contact with other staff, and does not drive on behalf of the company – would not be so serious as to warrant summary dismissal.

However, that might not be so if an employee, such as a bus driver, committed a traffic offence.

HR managers and line managers should apply the four-fold test in the bulletpoints above when considering whether or not an outside-work crime warrants a decision to dismiss. 

And finally: procedure.

HR and line managers may want to give some thought in advance of what their reactions may be in the event an employee commits a crime outside of work that impacts on the business.

Owing to a variety of factors in this case the dismissal here was fundamentally valid. It appears that the company managers were understandably very shocked, and acted without proper dismissal procedure.

Use of an unfair process is normally fatal to the employer's defence but, in this particular case, as the applicant was subsequently and quickly imprisoned, the need for procedural fairness was rendered irrelevant.

However, it is easy to imagine that other employees could commit offences that would not necessarily result in jail time (e.g. theft) and, on the basis of this case, employers would need to follow a much more robust and fair procedure. 

W v Blue Star Global Logistics [2016] FWC 6992 (7 October 2016)
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