The employer of a manager jailed for child s-x abuse denied him procedural fairness and should have obtained external advice before sacking him, but the FWC has found the dismissal a proportionate response.

The manager, who had a high profile as a community leader, argued that his employer, Bluestar Global Logistics, had no reason to dismiss him after learning of his crime and claimed he was denied procedural fairness.

The employee, who worked for Bluestar for 17 years and was promoted to national sales and marketing manager in 2014, appeared via video-link from a gaol where he is serving a 20-month sentence for sexually abusing a 13-year-old boy last Christmas.

Seeking 26 weeks' pay for unfair dismissal, the manager argued that he had been open and honest with Bluestar about the crime and charges he faced.

However, Bluestar's chief operations officer said that while the manager had provided some information, it wasn't starting until April, when media reports revealed he pleaded guilty to child abuse, that he had a "head exploding moment" and realised the nature of the manager's offence.

The company then told the manager to stay at home until further notice and in May summarily dismissed him for serious misconduct in breaching company policies and procedures and his employment contract.

Out of hours conduct damaged employer's interests: Hatcher

Vice President Hatcher on Friday found provisions in the manager's employment contract requiring him not to engage in conduct that might adversely affect the reputation or goodwill of Bluestar or bring it into disrepute "clearly applied to conduct outside of working hours as well as conduct at work".

The vice president also found a "firm basis" upon which to conclude that Wakim's out of hours criminal conduct "significantly damaged Bluestar's interests in respect of its relationships with its clients and staff".

Listing the "critical features" of the case, the vice president said that because the manager is a public figure, his serious criminal conduct was "always likely to attract media attention"; child sexual abuse is "viewed with particular abhorrence in the community"; and there was widespread media coverage of his offence, including at least one referring to his employment.

It was a "predictable result" that Bluestar's clients and employees quickly found out about the offence once it hit the media and "unsurprising" that the company received "alarming" communications from past and present clients, Vice President Hatcher said.

"In short, the public disclosure of [the manager's] offence rendered his continued employment untenable," the vice president said, noting that because he failed to tell Bluestar about the charges the company was unable to consider how it might deal with the matter before it became public.

"If [the manager] had continued to be employed and clients and staff were required to continue to deal with him, there would undoubtedly have been ongoing damage to Bluestar's reputation and its interests as a business and an employer."

Non-disclosure a deliberate choice: Hatcher

Vice President Hatcher also rejected Wakim's submission that he had not breached provisions in Bluestar's code of conduct because his criminal conduct was not deliberate.

He said the manager's decision to not disclose the details of his offence was a "deliberate and strategic one made by him in order to obscure matters adverse to his case", while his guilty plea and conviction "necessarily involved an admission by [the manager] and a conclusion by the court that the offence element of criminal intent existed".

"It is not open in those circumstances for [the manager] now to contend that his offence was unintentional," Vice President Hatcher said.

Although the dismissal was a "proportionate response to the situation Bluestar found itself in", he found the company denied the manager procedural fairness because it failed to notify him of the reason and therefore failed to afford him an opportunity to respond.

He noted that Bluestar did not have any dedicated HR management specialists or expertise at the time of the dismissal and this "affected the procedures it adopted".

But while its size meant Bluestar should have obtained external advice about how to afford procedural fairness before deciding to summarily dismiss him, Vice President Hatcher did not believe there was "any reasonable possibility that he could have advanced any response which might have altered the outcome".

He dismissed the application.

Joseph Wakim v Bluestar Global Logistics [2016] FWC 6992 (7 October 2016)