Dismissal Based on a Criminal Record

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One of your employees just got a conviction for a serious criminal offence. You are concerned about the safety and wellbeing of other employees in the workplace or the employee’s ability to perform the inherent requirements of the job that the employee is entrusted with. And now you are not even sure whether it provides grounds for "fair" dismissal or not.

Employers and decision makers need to ensure they act as per the law and as per best practice guidelines.

Should it be found that an employer used criminal records as a basis for discrmination, they may have the Australian Human Rights Commission (AHRC) or Fair Work Australia enquiring about their actions.

What does it mean to dismiss a person lawfully?

It is unlawful for employers to use criminal records as a means to discriminate against an employee if the criminal record has little or no correlation with the inherent requirements of the employee's work.

If dismissal is deemed necessary for the safety and wellbeing of others, or the inherent requirements of the job that the employee is entrusted to, dismissing a worker the right way simply means setting them off in a way that does not have any semblance that you discriminated against the person or acted unlawfully.

What you can do if an employee has a conviction

Employers and decision makers take criminal records seriously and even incorporate them into their internal risk mitigation strategy.

It will be hard for employers not to take any action if they discover that an employee has a serious criminal conviction or is hiding a part of their criminal records that may impact their job, the assets that they are entrusted with, or other people whom they work with.

Before you proceed on the next course of action, decision makers should consider the following factors:

• The nature of the offence

The employer should factor in the degree or circumstances around the offence before they take further action. Consider whether the offence would affect the day-to-day performance of the employee.

Where such offences/convictions would hinder them from carrying out their roles, the employer can decide to review the employment terms and criminal record in question.

However, if the conviction or sentencing does not affect them in their duty, the employer should carefully consider if the criminal record in question has any correlation between the work tasks and the employee’s ability to carry out the tasks in a responsible and legal manner.

• The employee's position in the business

Dismissing an employee that is crucial to business operations can be detrimental for the business. If you discover that such a person has a conviction or hid such convictions from the organisation, it is wiser to employ some cautious and well-thought actions.

• Potential impact on the business

An example of such a situation is where one of your employees is convicted of a sexual assault charge. Convictions of such degree are not only serious, but they can also impact the lives of those around the person.

It can be detrimental for any company, person, or business to associate themselves with such a person.

• The reasons why the person did not reveal the convictions to you

In the case of hidden records, the employer should also consider why the employee hid such records from them in the first place.

Dismissing a person based on criminal records

Dismissing a person based on a criminal record should be the last resort for any employer.

If dismissal is deemed necessary, employers should maintain cautious and straightforward procedures.

A recommended process to terminate a person's employment (if found to be necessary) is to consult/engage the services of an experienced lawyer. The lawyer will help review and detail the conditions of the termination and help decide whether the termination is lawful.

Dismissing a person where the convictions they got or hid from you has nothing to do with the inherent requirements of their job role can be problematic. Aggrieved employees have the right to complain to the AHRC.

Good Practices

If your internal resolution is to dismiss the employee, here are some matters employes and decision makers should act on as is suggested by the Australian Human Rights Council (AHRC)

• Explain the reasons for the dismissing in full

Even when they have a visibly popular and horrible conviction, the employer/board must fulfil the obligation of explaining to the person the purpose of their sack. In such a case it is proper to explain to them how the action is stipulated in the company's policy and procedures.

• Providing all entitlements and paid leave as required

Under the Industrial Act of Australia or other worker's welfare, they are entitled to certain entitlements and packages.

The length of period they work can determine how large the entitlement is.

• Providing references where appropriate

If the conviction you are dismissing them for is for an indictable offence, you can explain how much this will be harmful to the organisation. Most indictable offences have high negative impacts on any business.

• Abide by the Privacy Laws

Even if you discover they have lied to you with their convictions history, their data and profile must be kept safe. It is an offence to reveal details of a person's criminal records without their informed consent or a special court order

• Abide by relevant Anti-discrimination or other unfair dismissal laws

In all your actions, ensure that you don't run foul of the law, especially those for anti-discrimination. The dismissal should not be hard, unjust or unreasonable and comply with the Fair Work Act 2009.

Why Nationally Coordinated Criminal History Checks are important to decision makers and employers

A Nationally Coordinated Criminal History Check contains the details of the candidate's conviction records, including convictions, finding of guilt, pending court charges and all other records the State legislation finds useful for that purpose.

• It helps employers determine suitability for the role

If you assess the criminal records of candidates before employment, you can expect to get suitable candidates for the role (in terms of their criminal history).

For some roles, academic or natural qualifications are not as relevant as a Nationally Coordinated Criminal History Check. For children related roles, the legislation in some States and Territories mandates a working with children check (WCC) or a Working with Vulnerable People Registration as the requirement and not only a Nationally Coordinated Criminal History Check.

• It serves as a Risk mitigation strategy

When external inspectors/supervisors come to question the company's internal policy on risk mitigation, having periodic Criminal records Check among employees can be considered to be one.

The legislation in some States and Territories stipulates that for some roles (for example aged care employment), employers must request updated criminal records within respectable periods.

Company policies and procedures on criminal records

Dismissing an employee can be cumbersome and expensive, especially if they are tied to long term agreements or contracts.

However, if the person receives a conviction (and it does not affect their roles), there are alternative ways to deal with such issues.

The alternative means can also be executed if you have previously stipulated them in your internal company's policy and procedure.

There are policies the company can employ to checkmate such issues in future;

• Create a Written policy and procedure on how the firm handles Criminal records

Most employees hide their criminal records because the organisation was never clear on how they handle such matters. They are not sure how revealing or hiding their records will affect their position in the organisation.

However, a written policy on how you assess people through criminal records will be clear, anti-discriminatory, and a proactive measure to reduce such problems.

• Periodic Nationally Coordinated Criminal History Checks

For some purposes, the legislation in certain States and Territories stipulates that decision makers request updated criminal records from the employees or contractors. It improves the security and safety in the community and ensures that all people who use/receive your services are safe.

Employers must not use criminal records outside their intended purpose.

• Other pre-employment checks

It is not anti-discriminatory to perform extensive background checks before employment. For certain roles, a Nationally Coordinated Criminal History Check by itself may be insufficient; the company can explore other checks like;

• ✔ VEVO (right to work) Check
• ✔ Credit and Financial Checks
• ✔ Traffic Records
• ✔ Reference Checks from previous employers
• ✔ Working with Children, Working with Vulnerable People or NDIS worker Screening Check (if the role is a regulated role and the check is required by the legislation)

How can I obtain a Nationally Coordinated Criminal History Check?

Individuals

If you are an individual you can apply for a Nationally Coordinated Criminal History Check online via Australian National Character Check’s online application form. The results are dispatched via email.

Business and Enterprise Customers

Business and Enterprise customers can sign up to ANCC’s business portal where they can order, manage and track criminal history check results for their own candidates. ANCC sends an invite to the applicant to complete their Nationally Coordinated Criminal History Check and handles the application and informed consent form. Contact ANCC’s business and enterprise partnerships team today to enquire about setting up a business portal for your organisation.

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