What to do about employees charged with criminal offences

Employers are often faced with the challenging task of how to approach the situation where an employee falls foul of the law as a result of conduct in their personal life.

Consider the following recent examples involving professional footballers:

In February this year, a former rugby league, Australian rules and now rugby union player was charged with the use and supply of cocaine. The player was immediately stood down from his club, the Queensland Reds, and after entering a guilty plea for the possession of cocaine in March 2015, was ordered by the court to pay a fine and undertake counselling. At the same time, the Reds suspended the player for a further six games and he was ordered to pay a fine and participate in counselling.

Also in February 2015, five players from the Gold Coast Titans rugby league team were charged with possession of cocaine. The Titans, under considerable pressure from the media and sponsors, swiftly announced that the players would be stood down until the charges were finalised. However, unlike the above mentioned rugby union player, the Titans players pleaded not guilty to the offences and apparently intend to defend the charges. Following receipt of legal advice, the Titans reinstated the players and determined not to take further disciplinary action pending the outcome of the criminal proceedings.

Just recently, a Sydney Roosters player was charged with a number of domestic violence offences. In comparison to both the Reds and the Titans, the Sydney Roosters did not suspend the player for his alleged conduct, but rather did not consider him for selection due to concerns over his welfare and wellbeing. The Sydney Roosters made it clear that no decision on the player’s future will be made while the criminal matters were still before the court.

As illustrated above there are a number of different ways employers deal with situations involving employees charged with non work related criminal offences. There is no ‘generic’ or ‘one size fits all’ approach for these types of matters. Given the criminal courts operate on the presumption of innocence (ie you are innocent until proven guilty), decisions to remove employees from employment prior to a conviction is always a matter to be carefully considered.

Approaches that have been taken by high profile employers such as sports clubs where there is public pressure to “do something” in advance of the criminal trial might involve suspending a player for “bringing the game into disrepute” – rather than suspending them for the same reasons set out in the criminal charges (eg: assault etc).

An employer’s response to a situation like this must always consider the individual circumstances of a particular situation and advice should be taken from the employer’s legal advisers to ensure that the employer balances all of the issues before making a decision (e.g. the need to investigate, contractual obligations, Award/Agreement provisions, external pressures/influences, weight of the evidence, the employee’s wellbeing, the employer’s reputation, the fellow employees, the employee’s right to procedural fairness, and other obligations to act under other legislation).

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