Can you sack an employee with a criminal past?

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Can you sack an employee with a criminal past?

You’ve discovered that one of your employees has a criminal record, but is it grounds for dismissal?

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You’ve discovered that one of your employees has a criminal record, but is it grounds for dismissal?

It is very common for a business to uncover previously unknown information about an employee, even after they have been offered a job. But what happens when that new information involves a criminal past? 

As technology company Data#3 found out, discovering that an employee has a criminal record doesn’t give you the right to terminate them. After discovering that a recent new employee had previously been found guilty of selling drugs, the company decided to dismiss him.

Following his dismissal, the employee made a complaint to the Australian Human Rights Commission (HR Commission) claiming that he had been discriminated against. After hearing the evidence, the HR Commission agreed that he had in fact been discriminated against and recommended that the company pay him $76,000 in damages and lost earnings.

“Discovering that a co-worker has a chequered history with the law can be very distressing for some employees and organisations,” says Julian Arndt, Senior Associate at Australian Business Lawyers & Advisors. “Regardless of any individual’s moral beliefs, where an employee’s dark past is discovered, it should be handled extremely carefully.”

Things to remember

  • Be cautious of taking the “moral highground”. Regardless of any attempt by management to take the moral high-ground, be aware that a criminal past is not necessarily a non-negotiable and that a zero-tolerance style attitude to criminal records can put you at risk of a complaint being made to the HR Commission.
  • Consider the potential risks. A finding by the HR Commission that an employer has breached an employee’s human rights can result in considerable unwanted publicity and huge legal cost.
  • Investigate state legislation. Some states also have specific laws against discrimination on account of criminal history and employers who breach these laws may face binding legal sanctions.
  • Seek professional advice. If an employee (or prospective employee) is found to have a criminal history which gives rise to any issues, it’s wise to seek advice as to whether any state laws apply to the scenario and whether the criminal record can be linked to the inherent requirements of the employee’s role. 
  • Tread carefully. If the situation is not handled carefully, an employer can risk an appearance at the HR Commission or potentially worse, a prosecution under discrimination laws in some states.
If you have any questions about this article, please contact Australian Business Lawyers & Advisors on 1300 565 846.

This article originally appeared on the NSW Business Chamber website. WorkplaceInfo is owned by the chamber.

 
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