What to do if a potential employee fails a nationally coordinated criminal history check

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It has not only become ethically and business-centric these days to request a potential employee for their criminal history certificate, but also legal in some circumstances. If your organisation is in the caregiving sector, employing “recklessly” a sex-offender/one with a recent history of violence could lead to punitive actions from the authorities.

However, interpreting/implementing the criminal history of potential employees could also lead to a conundrum as special commissions are in place to ensure that employees are not discriminated against. If your company wrongly interprets this, it could lead to a costly and resource-draining litigation process.

Most times, “failing” a background check does not suggest that the candidate is not legally suited for the job nor that you should fire the individual. Interpreting the Nationally Coordinated Criminal History Check with the right guidance and employing the right strategies can save you from this conundrum.

The crux of the issue is determining what kind of “failure” on criminal checks can be considered unsatisfactory enough?

To what extent is considered unsatisfactory for your organisation?

Imagine if an accountant who applied to your company had an impeccable career history but was convicted for over speeding or related actions 5 years ago. How about if the convictions were for college graduation celebrations? Knowing that this blemish does not correlate with his career, would it be fair to deny him the offer even when he is qualified?

The path you choose in resolving this issue will have ripple effects in your business, and send a subtle message to your current employees. Also, think about the effects this dismissal might have for your organisation, could you be making your business vulnerable to a discrimination case?

Furthermore, you should know that if you set the hurdles too high and the process too “vindictive” your organisation risks losing out on bright potentials who could well improve the organisation.

However, if your organisation has a strong logical obligation to keep the standards high, then you should let prospective employees know at the earliest stage of employment. The consequence of this is that you risk the ire of the Equal Opportunities Commission and vilification from the masses for “discrimination.”

Can you refuse an employee an offer due to their criminal history check?

Where an applicant feels your organisation has discriminatorily refused them an offer, they can file a complaint through the Equal Opportunities Commission.

However, where the conviction is related to the employment offer, your organisation can review/withdraw the offer to that individual. Individuals who seek employment in financial institutions can be denied employment if they have a recent criminal history for dishonesty, theft, misappropriation, and co.

Furthermore, applicants can be prohibited by law from being employed as; lawyers, doctors, physiotherapists, caregivers, and co. if they hold certain criminal records. Criminal records regarding sexual convictions can prevent a person from getting employment where he has to administer on a "one-on-one" basis.

Where a potential employee/worker has a Nationally Coordinated Criminal History Check that shows to be “too high risk” you are not obligated by law to employ or retain such people.

One of the best ways to determine the satisfaction level of an individual for a role can be to gauge the circumstance and compare the correlation between the conviction and the role they apply for. Though, you should do this at no risk to your organisation's image or operations.

Can an applicant sue your company for denying them an opportunity due to their criminal history?

In the Australian states aside from Victoria, applicants may file complaints against your organisation if they feel they were discriminated against in the employment process. These complaints are usually submitted through the Equal Opportunities Commission and it is backed under the Australian Human Rights Commission Act of 1986.

If your organisation considers a prior criminal conviction impeding in the employment process, it is important to state this at the early stages of the employment process.

However, the laws in Victoria only grants protection to current employees and not prospective employees.

There was a case of Ms. Christensen Vs Adelaide Casino: Ms. Christensen had applied for a bartender role at the casino but was refused based on a previous conviction. It involved her stealing two bottles of alcohol when she was 15 years of age.

This was the commission conclusion and position on the issue;

• The applicant was a minor at the time of the conviction
• The offense was already 8 years at the time she applied
• The applicant had a prior engagement in the hospitality industry before her application

Therefore, the commission agreed that: Although the job required employee trust and integrity, there was little correlation between Ms. Christensen’s conviction and the role requirements.

What if a current employee presents an updated criminal history, and now has a conviction?

Most employers require updated police checks after specific periods. An employee might have been charged with an offense while working in your organisation. However, the procedures for handling this case are nearly similar to all that is stated above.

The interpretation of such convictions is at the discretion of your organisation depending on its risk management/litigation strategy. However, where the offense is of little/no significance to the employee's role or puts the organisation at no risks whatsoever, it is prudent to employ leniency.

Can a failed criminal history be a dismissal trigger?

Requesting a person’s police check should be completely ethical and business-centric reasons. It is inappropriate to witch-hunt/target an employee due to a failed criminal history check. Before dismissing an employee for their failed criminal history check, ensure that you have "irrefutable" policies and arguments to back up the action.

Even when the employment is on a probationary basis, it is notorious to dismiss them for an "unsatisfactory" criminal history check. The most suitable solution is to wait for the prospective employee’s criminal history check before the offer of employment

Can the organisation overlook an unsatisfactory criminal history check?

Recruitment processes are at the prerogative of every organisation depending on their internal strategies. However, the authorities will interfere if such processes/persons prove a high risk to the public or their interests. Also, authorities might take serious measures against any organisation that flouts legal procedures for employment as stipulated.

If your organisation chooses to overlook prior convictions of a prospective employee (where convictions have no impact on the role), the company policy must communicate this.

All in all, there should be a balance between risk management and lenient recruitment policies.

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