31 October, 2023
A recent Fair Work Commission decision explored the issue of an employee who had been convicted of a crime, failed to declare this crime to his employer, and was terminated as a result. While not common, we do occasionally get queries in relation to employees who have been charged or convicted with crimes, including pre-employment convictions.
This EMA Note will help guide employers through the various matters that must be considered when making decisions in this area.
In the recent Fair Work Commission matter of Strangio v Sydney Trains,[1] a Full Bench of the Fair Work Commission dismissed an appeal against a decision by Commissioner McKenna,[2] who found that an employee’s dismissal was reasonable in circumstances where he failed to report a criminal charge/conviction to his employer, as he was required to do under the employer’s code of conduct. The charges occurred in 2021, and the conviction in 2022, which was during the employee’s 37 years of service with the employer.
We provide guidance below on how employers must approach this area, grouped into the two categories of pre-employment criminal history and criminal charges/convictions during employment.
Determining whether pre-employment criminal history can be considered as grounds for either rejecting a prospective employee or terminating a current employee must begin first with a review of the relevant legislation.
Different states and territories have different laws on discrimination. For example, in the Northern Territory, there is a general prohibition on discriminating against a person for an ‘irrelevant criminal record’,[3] though with some exemptions. The states and territories also have laws providing convictions becoming ‘spent’ after a certain period of time. In South Australia, as an example, there are rules against disclosing spent convictions and those spent convictions are typically required to be disregarded.[4] Some states go a step further and make it unlawful to discriminate against a person because of a spent conviction.[5]
At a federal level, while not unlawful, the Australian Human Rights Commission can investigate and deal with complaints about discrimination in employment on the ground of an irrelevant criminal record.[6] Separately to discrimination, a person’s criminal record constitutes ‘sensitive information’ under privacy laws, so an employer can generally only collect that information where the individual consents and the information is reasonably necessary for one or more of the employer’s functions/activities.[7]
It is therefore important for employers to establish, before requesting or requiring information about an employee’s (or prospective employee’s) criminal history, what the rules are in their state/territory and comply with those rules. This should include confirming whether there are any legislated requirements around the employee’s particular job (for example, if a police record check is required for their role). Other than this, employers should only seek information about an employee’s criminal record or history if it is relevant or connected to the employee’s job.
Where a refusal or failure to disclose this information would constitute a valid reason for termination will depend both on whether it is reasonable and lawful to require the information and also on the connection between that history and the employee’s job,[8] which is explored further below in relation to current employees.
If an employee engages in a criminal act against their employer or in the course of their employment, this will almost always constitute valid grounds for dismissal. For example, the Fair Work Regulations 2009 (Cth) expressly lists theft, fraud, and assault as examples of serious misconduct.[9] However, different considerations apply when the conduct is engaged in outside of work.
Queries we receive ordinarily involve instances where an employer is suddenly made aware that an employee has been charged with a crime and wants to know ‘where it stands’ in relation to that employee. Often when this happens, the employer has little-to-no information other than having been told by someone—often not the employee themselves—that the employee has been charged with an offence.
There are various factors to consider when this occurs. Information that the employer should seek in the first instance is whether the employee is being restricted from attending the workplace in any way (for example, if they are being held in remand or if a court order is otherwise preventing them from leaving their home for any reason). If so, the employer should investigate whether the employee has capacity to continue performing their job.
Otherwise, the employer must investigate the matter and satisfy itself, so far as it is reasonably able, whether the employee has engaged in conduct that is inconsistent with the employee’s job, as set out below. This assessment may need to include whether there are any regulatory requirements around criminal history for the job.
If an employee is charged or convicted of a criminal offence, the standard rules of ‘out of hours conduct’ apply to the employer’s assessment of whether the offence may constitute ground for dismissal (assuming the conduct was engaged in outside of work). That is, there needs to be a sufficient connection to the employee’s job, and the employer must satisfy itself on the balance of probabilities that the employee engaged in the conduct.[10] This will require the employer to investigate the matter (so far as it is reasonably able) as it would any other allegation of workplace misconduct.
Employers should be aware, from a practical perspective, that notwithstanding an employee’s typical obligation to participate in workplace investigations and be honest and truthful during that investigation, an individual cannot generally be compelled to admit whether they have committed a crime.[11] In most circumstances, when allegations are put to an employee in relation to suspected criminal conduct, the employee will on advice from their lawyer refuse to answer any questions other than to deny any wrongdoing. In any event, employers must reach a conclusion based on the evidence they were able to gather through their investigation (provided the investigation was robust and went down all reasonable paths of inquiry).
Employers should seek advice on how best to approach these investigations if they are unsure.
For pre-employment conduct:
For conduct during employment:
If you are unsure about your obligations, or need any assistance in investigating such a matter, you should seek advice.
If you require further information or advice, please contact your Consultant.
EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.
