A recent Fair Work Commission decision serves as a timely reminder that criminal charges and employment do not automatically go hand in hand. While allegations of criminal conduct can create significant concern for employers, the legal question is not whether an employee has been charged. The real question is whether the circumstances impact the employment relationship or the employee’s ability to perform their role.
In Mr Brett Holzheimer v Engage Marine Pty Ltd [2026] FWC 3070, the Fair Work Commission (FWC) ordered the reinstatement of an employee who had been dismissed while on remand facing stalking and domestic violence charges. The decision highlights the importance of separating unproven allegations from legitimate employment-related concerns.
The Case: When Criminal Charges Become a Workplace Issue
The employee, a ship pilot, was in custody awaiting the outcome of criminal proceedings and therefore unable to attend work. The employer had concerns about the prolonged absence, the uncertainty surrounding any return to work, and the employee’s lack of transparency about the circumstances.
The FWC accepted that these were legitimate concerns. In fact, the Commission found there was a valid reason for dismissal arising from the employee’s inability to perform the inherent requirements of the role while he remained in custody. The Commission also confirmed that employers are not required to hold a position open indefinitely where there is no certainty about an employee’s return to work.
However, the dismissal was still found to be unfair.
The critical issue was the employer’s evidence during the proceedings. The employer ultimately conceded that the criminal allegations themselves were the “real reason” for the dismissal. Because the charges had not yet been proven and remained before the courts, the FWC concluded it was premature and unjust to rely on those allegations as the basis for termination. Reinstatement was therefore ordered.
Criminal Charges Do Not Automatically Justify Dismissal
Many employers assume that being charged with a criminal offence is sufficient grounds to terminate employment. In most cases, that assumption is incorrect.
Australian employment law generally requires employers to establish a valid reason connected to the employment relationship. A criminal charge, on its own, does not prove wrongdoing. Employees remain entitled to the presumption of innocence until the matter is determined by a court.
This means that employers should avoid making disciplinary decisions based solely on allegations or charges. Instead, consideration should be given to whether the circumstances create a genuine workplace issue.
Examples may include:
- The employee can no longer perform the inherent requirements of their role.
- The employee loses a licence, accreditation or clearance required for work.
- The conduct creates a significant safety risk.
- The employee is incarcerated and unable to attend work.
- The allegations create a material reputational risk that directly impacts the employer’s business.
- The conduct is fundamentally incompatible with the employee’s position, particularly where trust and integrity are critical requirements.
The focus should always be on the employment consequences, not the existence of criminal charges themselves.
Can Employers Require Criminal History Checks?
Employers are generally able to request criminal history checks where they are reasonably connected to the role and serve a legitimate business purpose.
Common examples include:
- Work involving children or vulnerable persons.
- Aged care and disability services.
- Financial services and banking.
- Security-sensitive positions.
- Government and defence roles.
- Roles involving significant access to confidential information, cash or high-value assets.
However, employers should be cautious about imposing criminal history checks where there is little or no connection between any potential criminal history and the duties of the role.
The relevance of the criminal record matters. For example, a historical drink-driving offence may be highly relevant for a professional driver but largely irrelevant to an office-based administrative role.
Employers should also be mindful of privacy obligations and anti-discrimination considerations when collecting and assessing criminal history information.
What If an Employee Is Charged with an Offence During Employment?
An issue that often arises is where an existing employee faces criminal charges unrelated to work.
In many cases, the answer may be surprisingly simple: it may not be the employer’s concern.
If the alleged conduct:
- Occurs outside the workplace;
- Does not involve colleagues, customers or clients;
- Does not affect the employee’s ability to perform their role; and
- Does not create a genuine workplace risk,
there may be little basis for disciplinary action.
For example, an employee who receives a minor traffic infringement or faces an allegation entirely unrelated to their work may not create any employment issue at all.
Employers should be careful not to overreach in these situations. Taking action based on personal views about an allegation, rather than a demonstrable workplace impact, can expose businesses to unfair dismissal, adverse action or discrimination risks.
When Might Off-Duty Conduct Matter?
There are circumstances where criminal conduct outside work can legitimately affect employment.
Examples include:
- A delivery driver charged with serious driving offences where their licence is suspended.
- A childcare worker charged with offences involving children.
- A finance manager charged with fraud-related offences.
- An employee whose alleged conduct has attracted significant public attention and directly impacts the employer’s reputation or stakeholder confidence.
In these situations, the issue is not necessarily the criminal charge itself. Rather, it is the practical impact the circumstances have on the employment relationship.
Key Takeaways for Employers
The Holzheimer decision reinforces several important principles for employers:
- A criminal charge is not proof of wrongdoing.
- Employers should focus on workplace consequences rather than allegations.
- An employee’s inability to perform their role may provide a valid basis for action.
- Criminal history checks should be relevant and proportionate to the position.
- Off-duty conduct will only justify intervention where there is a genuine connection to the employment relationship.
- Decisions should be evidence-based and carefully documented.
Ultimately, when criminal matters intersect with employment, employers should resist the temptation to react to the allegation itself. Instead, the focus should remain on whether the circumstances genuinely affect the employee’s capacity, suitability or ability to perform their role. As the FWC’s recent decision demonstrates, getting that distinction wrong can be the difference between a lawful termination and an order for reinstatement.
Case Reference: Mr Brett Holzheimer v Engage Marine Pty Ltd [2026] FWC 3070
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