Clients are often concerned about the impact of their criminal matters on their job and employment prospects in the future. While this article provides important information for people facing criminal convictions or with a criminal history, employers should also take note. While some employees simply cannot do their job because of their criminal history (for example, where they require security clearances), employers should take care when making hiring decisions where applicants have a criminal history. Where a person’s ability to do their job is in no way impacted by their criminal history, employers must take care not to fall foul of anti-discrimination law. Additionally, it may pay to enquire as to the circumstances surrounding an applicant’s offending. Your best employee may have made a foolish mistake or shown a lapse in judgement which has resulted in their criminal history. Jumping to conclusions about a person’s trustworthiness may be at the cost of securing the most competent, hardworking, and loyal employees.
If you are convicted of a criminal offence and a conviction is recorded against you, your criminal history may impact your current employment or your ability to get work in the future.
Employers seek information about current and potential employee’s criminal histories in a number of ways such as:
- Asking for the employee to disclose their criminal history;
- Asking more specific questions such as whether you have ever gone before a Court in relation to a criminal matter or pleaded guilty to a criminal offence;
- Asking for consent to conduct criminal history checks;
- Requiring that employees consent to policies that impose disclosure obligations for any criminal convictions that arise during the course of the person’s employment.
If you are concerned about how your current criminal matters or past criminal convictions may impact your current or future employment, you should obtain legal advice as soon as possible.
Certain convictions are subject to what is known as a rehabilitation period. When the rehabilitation period expires, you are entitled to state that you do not have a criminal history, except in certain, limited circumstances. When an adult is convicted on indictment (i.e. in the District Court or the Supreme Court of Queensland) and a conviction is recorded against them, the rehabilitation period usually occurs 10 years after the date of the conviction.
Where a conviction is recorded, other than on indictment (i.e. in the Magistrates Court), the rehabilitation period usually occurs 5 years after the date that the conviction is recorded. Subject to limited exceptions, where the rehabilitation period has expired, it is lawful for a person to claim that they have not been convicted of an offence.
Rehabilitation periods do not apply to certain offences, specifically, where the person has been sentenced to serve any period in custody or a period not exceeding 30 months in custody. This applies whether or not the person actually serves any part of their sentence in custody.
Situations can arise where an employer assumes or for some other reason, incorrectly believes that their employee does not have a criminal history. Where an employer later discovers that this is not the case, the Fair Work Commission has found that, in some instances, undisclosed criminal history is an insufficient basis upon which to terminate a person’s employment.
In Njau v Superior Food Group Pty Ltd  FWC 7626, the Fair Work Commission found that an undisclosed criminal history was not a sufficient basis for dismissing an employee. In that case, the person’s employer could not establish how her criminal history made her unfit for her position. In this matter, the employee did not comply with the employer’s policy to disclose relevant criminal convictions. Some years after starting her employment, her employer asked to conduct criminal history checks on her. Initially, she resisted this but ultimately, she co-operated, and her criminal history came to light. In this situation, the employee’s dishonesty in not disclosing her convictions when she was initially employed was found to be disproportionate to the employer’s response in terminating her employment. Significantly in this matter, the employee was able to perform the functions of her role despite her criminal history.
It’s important to remember that the financial compensation recoverable through the Fair Work Commission in unfair dismissal matters is limited. Reinstatement of employment is described as the ‘primary remedy’ under the Fair Work Act 2009 (Cth) however it will not be ordered if the Commission is satisfied that reinstatement is inappropriate. Reinstatement will not be appropriate where the relationship between the employee and the employer has broken down to an extent that it is simply impractical for the two to work together again. It’s easy to see how this relationship might quickly disintegrate prior to or in the course of litigation.
This is a significant consideration for applicants when disclosing their criminal history in the course of applying for new employment opportunities. While it may be difficult or embarrassing to disclose criminal history, failure to do so when directly asked may jeopardise your prospects of obtaining reinstatement as a remedy if your history is subsequently discovered and your employer moves to terminate your employment on the basis of your criminal history.
Importantly, these cases turn on their specific facts and may or may not be relevant in considering your circumstances. If you are concerned about your criminal history and whether or not it will impact your prospects of employment in the future or your current employment, you should seek legal advice.
The Law – Human Rights and criminal history
The Australian Human Rights Commission also offers some recourse to people who are subject to adverse action in their employment situation as a result of their criminal history. In the 2015 case of AW v Data#3 Limited  AusHRC 105, the Commission considered a complaint from an employee whose employment was discontinued when his employer became aware of a criminal history he had. The criminal history related to the sale of dangerous drugs.
Ultimately, the Commission found that it was discriminatory to terminate the complainant’s employment on the basis of his criminal history. The Commission recommended that the employee be compensated for the earnings he lost as a result of the discriminatory termination and for the personal distress caused to him. The amount ordered was approximately $75,000.00.
In that matter, it was a fundamental consideration that although employees may be required to obtain security clearances or pass police checks on any given project, the ability to do so was not an inherent requirement of every person holding the position.
Importantly, while this matter establishes that there may be recourse to the Australian Human Rights Commission in instances where an employee is discriminated against on the basis of their criminal history, each matter is different and must be considered on its own specific facts.
It is important to note that while the Commission is empowered to conciliate these matters, they cannot order the payment of compensation.
If you or someone you know is currently concerned about the impact of their criminal history on their current or future employment, call Criminal Lawyers Brisbane at Bosscher Lawyers for legal advice.