In the recent case of Colin Wright v AGL Loy Lang, the full bench of the Fair Work Commission (FWC) was faced with an interesting conundrum – could the criminal law Pfitzner principle be legitimately applied to a civil matter? With the original decision on the point being in the negative, the appeal bench had an interesting opportunity to explore the transferability of criminal law authority into the industrial law arena.


facts of the case

Wright, an employee of AGL Loy Lang, had found himself in rather a difficult position after finishing a shift at the AGL site and journeying toward home. Losing control of his vehicle, Wright tore through a roundabout then smashed into two fences before eventually coming to a stop. Police at the scene reported that the vehicle operator admitted to them that he had recently been “smoking synthetic cannabis.” During the course of the original unfair dismissal proceedings, it came to light that Mr Wright had already been disciplined at work for his use of synthetic cannabis. Further, he had received employee assistance from AGL in order to combat his substance-related issues.



Once the accident and surrounding information came to the attention of the employer, Mr Wright was dismissed. In making the decision to dismiss Mr Wright following the accident, the employer took into account his admission to police regarding his use of synthetic cannabis prior to the event.

The employee then proceeded to argue that, because AGL had utilised this alleged admission made to police, Wright’s dismissal from employment was unfair.

Specifically, he argued that the principle in Pfitzner applied, which precludes certain admissions from being used against an accused in later proceedings. This is a well-established principle in criminal law, and is strongly tied to the rights of the accused at and around the scene of an alleged crime. Such rights include the right to remain silent, as well having any remarks disregarded where the accused was incapable of making a sensible decision about speaking with police.


first instance and appeal


In the original hearing, Vice President Watson rejected the notion that Mr Wright could rely on the Pfitzner principle in order to have his statement at the accident site disregarded. He concluded that the common law protections set out in Pfitzner would not extend to the current matter, being a civil law case of unfair dismissal.

On appeal by Wright, the full bench of the FWC upheld the findings of Vice President Watson.

It was confirmed that the criminal law Pfitzner principle regarding the use of statements at the scene in later proceedings could not be appropriately applied to the present civil matter. That is, the employer AGL was well within its rights to utilise the statement made by Mr Wright, and to rely on it during unfair dismissal proceedings.


A rule of law issue

It is perhaps unsurprising that the rules of evidence differ between criminal and civil cases – and that protections embedded within one do not necessarily translate to the other. Yet the Wright matter could provide pause for thought when we consider the broader premises of the rule of law – the accused has inviolable rights at the scene, and legal principles must be evenly applied between parties. As the Commission rightly noted however, civil arenas such as the FWC are under no obligation to apply principles developed in the criminal law – even if issues of individual rights might arise. Where an event creates both criminal and civil repercussions, differing courts are certainly within their rights to restrict evidentiary considerations to their particular ‘patch’ of the law.


KNOWING the right principles

In considering Mr Wright’s admission to police at the scene of the accident, it was held on appeal that Vice President Watson had taken the appropriate line of leaving the Pfitzner principle where it belongs – in the arena of criminal law jurisprudence.

As a result, it was established that the employer could certainly use the statement to police to assist in establishing the employee’s unacceptable behaviour prior to the accident. This, combined with a fair and even-handed process across the history of Wright’s poor behaviour, ensured that the dismissal was found to be fair in all the circumstances.

The case reminds us that the evidentiary principles applicable to workplace law are quite particular, and capable of being distinguished from criminal and other standards. We urge employers to find the time to keep up-to-date on the principles applicable to unfair dismissal, to ensure that relevant decisions are made with the best possible information.

Content retrieved from: http://www.wiseworkplace.com.au/_blog/WISE_Blog/post/unfair-dismissal-should-criminal-law-principles-apply/.