Workplace misconduct vs criminal conduct

The difference between a criminal and workplace investigation was highlighted in the recent New South Wales Industrial Relations Commission decision of Bobin v Commissioner of Police.

On 26 July 2014, Mr Bobin and his then girlfriend, Ms Plumridge, had a fight.

Mr Bobin was charged with assault and intimidation as a result of what took place, but acquitted of those charges.

In 2018, Mr Bobin was, in effect, dismissed from the police force.

One of the grounds for dismissal was that his conduct on 26 July 2014 was contrary to legislated standards and the NSW Police Force Code of Conduct and Ethics.

Mr Bobin challenged his dismissal. Mr Bobin argued that his acquittal of the criminal charges meant that any allegations of misconduct in relation to the 26 July 2014 events were not made out.

The Commission rejected this argument on two bases.

First, the argument ignored the difference between the criminal and civil standards of proof. In relation to that, the Commission stated:

“The applicant’s submission of “Not Guilty” of the assault and intimidation charges therefore “Not Guilty” of [the misconduct allegations] does not take into account: the differences between the charges and the Allegations and the standard of proof required to establish guilt of the charges of assault and intimidation versus the standard of proof in this matter.”

Second, the argument ignored the difference between a criminal acts and conduct that breaches a relevant employment obligation. In relation to that, the Commission concluded that – whether or not he had engaged in criminal conduct - Mr Bobin had admitted to conduct that “created an environment that caused Ms Plumridge to fear some form of physical violence and she had reasonable grounds for those fears”.

Accordingly, the Commission found that Mr Bobin’s conduct did breach the relevant Act, Regulations and Code of Conduct.

The case highlights the important differences between criminal conduct and workplace misconduct. Employers sometimes believe that they should stand by if an issue is being investigated by the police. This decision emphasises why that attitude may not be correct. In some cases it may be appropriate, or indeed necessary, for an employer to conduct their own workplace investigation while criminal proceedings are underway.