The Case

Tiffany Stodart v The Employer (2022)

Ms Stodart worked at a supermarket (whose identity was withheld for privacy reasons). Upon discovering a work colleague had a prior criminal conviction, Ms Stodart demanded he be dismissed. The employer obtained legal advice about the request. Given the work colleague’s position and the fact he had not engaged in any misconduct, the employer refused to dismiss the employee.

The employer offered to change the location of Ms Stodart’s employment to another store or alter her work shifts so she did not have to work with her colleague. Ms Stodart refused, and became rude and insubordinate with management. After following a procedurally fair process, Ms Stodart’s employment was terminated. Ms Stodart commenced unfair dismissal proceedings in the Fair Work Commission (FWC).

The Verdict

The FWC found:

• the employer had told Ms Stodart to report to them if she observed any concerning behaviour of her work colleague;
• the employer had tried to accommodate Ms Stodart when she expressed that she did not wish to work with her work colleague;
• Ms Stodart had engaged in insubordinate and aggressive behaviour;
• there was a valid reason for dismissal;
• the employer had followed a procedurally fair process; and
• the dismissal was not harsh, unjust or unreasonable.

The Lessons

Employers need to be careful to consider the relevance of any disclosed past criminal conviction in the hiring process. It may be discriminatory not to hire such an employee or to terminate their employment if later a criminal conviction is disclosed. It will depend on the relevant facts, the industry of the employer and the requirements of the job in issue. In such circumstances, obtaining legal advice may be prudent.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.