In a recent decision, the Fair Work Commission (FWC) found that an employer’s termination of an employee for failing to pass a national police check was not based upon a valid reason because:

  • the employer had known about the findings of the police check for more than a year prior to the date of termination; and
  • the particular convictions did bear upon the inherent requirements of the employee’s position.

The employee concerned had a criminal record prior to seeking employment with the employer and failed to disclose all of his convictions in his application for employment. However, at the time of his application, the employee simultaneously consented to a national police check with the understanding that his full history of convictions would be disclosed to the employer.

Upon receiving the police check, the employer took no action to deal with a concern in relation to the criminal record or any absence of disclosure. After approximately 15 months of employment, the employer terminated the employee based on the national police check results.

In an interesting turn of events, the employee inadvertently revealed during the hearing that he had also fabricated his employment history.

The FWC found that this was a valid reason for the dismissal because the employer could not reasonably rely on the employee to be honest in his dealings with the business.

Unfortunately, the employer was unable to defend the application on this basis because they were unaware at the relevant time and could not therefore notify him of the appropriate reason or provide him with an opportunity to respond, meaning that the dismissal was still unfair.

Lessons

Employers should make clear, through their pre-employment processes and documentation that a failure to fully and honestly disclose relevant matters (including criminal record) is likely to result in immediate dismissal.

Employers should act promptly when they become aware of any circumstances justifying dismissal. Unnecessary delay will greatly increase the risk of an unfair dismissal claim.

  • Employers must demonstrate a connection between convictions and the inherent requirements of a particular position when terminating an individual’s employment for their criminal record. As a general rule, crimes of dishonesty are far more likely to be relevant than, for example, traffic offences.
  • Caution must also be exercised in offering or refusing employment based upon criminal convictions. The same connection to the inherent requirements of a position is a decisive factor under anti-discrimination legislation.