Work Standards Hit for Six?

Welcome back to work and to 2018 everybody!  At That’s the Law we spent our break watching an increasingly harried and overheating Englishmen chasing a little red ball all over the place.  Always beware those who say they would have liked to see a closer contest – they are either lying to side like nicer people, or closet English sympathisers.

Many pundits believe that the reason the English didn’t close to us was the absence of Ben Stokes who was not considered for selection following an incident outside a nightclub in Bristol (cider anyone?)

Stokes is not the first, nor I daresay will he be the last, sportsmen to run into employment law problems because of his off-field behaviour (if Todd Carney ever offers you a drink from his bubbler I suggest you refuse!) and each time we hear a version of the well worn phrase, due process, and innocent until proven guilty trotted out.

From a legal perspective there are two quite separate areas of law at play here, criminal and employment.  Naturally there are many different considerations at play when comparing whether someone is guilty of a criminal offence, and interpreting their rights under a contract of employment.

Stokes was charged with affray this week.  This is a lesser known, but very serious offence, that exists in New South Wales also.  In the Crimes Act it states “A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years”.

Those who have followed the case closely will know that there is CCTV footage of the incident.  It is readily available on the internet and I would urge you to have a look for yourself and then think about whether, in your view, it fits within the above definition.

Of course Stokes has proclaimed his innocence and the matter will have to be heard by a Court.  In order to be found guilty, the offence must be found proved beyond reasonable doubt.

The ECB (Stokes’ employer) has issued a statement saying that given the decision to charge Stokes and that he has confirmed that he will be contesting the charge it has determined “that it would not be fair, reasonable or proportionate for Ben Stokes to remain unavailable for a further indeterminate period”.  They also offered the usual respect for legal process.

There is of course another way this could have played out.  The ECB could have reviewed the footage, discussed it with Stokes and decided that this was conducted unbecoming of their employee.  That conclusion is not dependant on whether or not a crime had been committed.

Depending on the terms of their employment contracts they then could have decided to suspend Stokes for a fixed period of time, or even terminate his employment totally.  Again, this is not dependant on any criminal proceedings.  Had they done this his suspension may already be over.

Stokes might have an argument against such action on behalf of the ECB.  In the context of an Australian employee, someone in a similar position might argue that they had been unfairly dismissed.  It is of course a defence to such a claim to say that an employee had committed serious misconduct, the definition of which in the Fair Work Regulations includes conduct that causes a serious and imminent risk “to the reputation, viability or profitability of the employer’s business”.

Regardless of whether or not Stokes has committed a criminal offence, it is difficult to view the footage of the incident and not take the view that it has damaged the reputation of the ECB, although perhaps not as much as the manner in which it has subsequently handled the case.

Throughout a long hot summer England failed to take a firm stand on the field.  It looks like the ECB failed to do that off the field also.