Can I Terminate an Employee for a Criminal Conviction?
When serious information comes to light about an existing employee, it can put employers in a difficult position. The major concern over criminal convictions is the safety and wellbeing of others, including the employers, other employees and those using the business’s services.
Your immediate reaction may be to sack the individual in question without a second thought. However, to wrongfully terminate somebody from a job is discrimination, and a breach of Australian law. To protect workers, there are human rights services in operation to investigate instances like this.
Before making an ill-informed decision, there are some important factors you must consider beforehand.
What is the Termination of an Employee?
The termination or dismissal of an employee occurs when an employer ends the contract between the business and the employee. This means that the employee is no longer able to continue working for the employer, and is no longer a part of the workforce.
Terminating an employee’s contract is not something that is done lightly. Reasonable grounds must be established for the employer to make this decision. This is greatly important, as unfair grounds for dismissal can cause all kinds of problems. The procedure must always be fair and lawful.
What is Lawful Dismissal?
Should an employer choose to dismiss an existing employee, it must be done lawfully. This means that the decision is valid in the eyes of the law, and no breaches of the law have taken place.
It’s important for employers to always practice lawful dismissal when they no longer want an employee to work for them. Failure to do so can lead to complaints and even legal action.
If an employee has a criminal record, it is unlawful for the employer to use this as grounds for dismissal. Discriminating against somebody because of their record is illegal if the criminal history has no relevance to the duties of the employee. This includes;
- Terminating a contract based on the criminal record
- Refusing jobs or opportunities based on the criminal record
However, a criminal record check is an essential way to screen candidates for various jobs. The candidate’s criminal history can only be used to refuse people from certain roles if it directly impacts the inherent requirements of the job.
For existing employees, lawful dismissal is an option if it is considered essential for the safety of others that the employee be dismissed. However, it must be done the right way. If done the right way, the person can leave the position without feeling discriminated against.
Factors to Consider for an Employee with a Criminal Conviction
Criminal convictions are naturally a concern for employers, companies and organisations. In lots of industries, the requirement for a criminal record check, otherwise known as an Australian police check, is mandatory under national law.
It’s a common occurrence for candidates to be screened during the initial hiring process. This helps those in higher positions to decide on the best hires while confirming their eligibility for the job. In Australia, it’s often part of the internal risk assessment procedure.
Criminal convictions must be taken seriously for the safety and wellbeing of others, as well as the company itself. Assessing convictions helps to protect assets, reputation and the trust which has been built over time.
Adding a criminal background check to pre-employment screening provides transparency between employers and candidates, ensuring there are no surprises later down the line. Decision makers are able to make an informed judgement, and candidate’s can relax in the knowledge that their record is out in the open.
It can be an unwelcome surprise to discover serious information not previously known. If it is later discovered that an employee has a serious conviction on their record, it can be challenging for employers to handle the situation. This is especially true in circumstances where the conviction has a serious impact on the work or shines a light on the potential for harm to others.
In these unfortunate situations, the best course of action is for the employer to remain calm before making any rash decisions that could later backfire. Employers and companies should ensure some important factors are assessed before deciding on the next steps.
The nature and severity of the offence
While it can be a surprise to discover serious information about an existing employee, it’s extremely important to consider the nature of the offence. Assessing the nature of the offence is key to determining whether it will have a negative effect on the individual’s work.
If the offence prohibits or makes it difficult for the person to do certain work, the employer can then make a choice to dismiss the person, provided they can back up those claims.
Alternatively, the offence may have no impact or relevance to the duties carried out by the employee. In this case, dismissing them could be seen as unlawful, as the conviction has no bearing on the job.
The reputation of the business
Before deciding how to handle a criminal conviction which has surfaced, an important factor to think about is the impact this offence could have on the business, and the way that it is perceived.
Building trust with clients, customers and other businesses is vital for success. To grow trust, screening candidates and ensuring a safe working environment is beneficial. People will use the services in the knowledge that the employees can be trusted. Losing or diminishing this trust could be seriously detrimental to the business.
For instance, if an employee is convicted of a serious crime, such as a sexually related offence, this could seriously harm your company’s reputation.
The employee’s personal impact on the business
Many people have key skills and attributes that make them an essential member of the team. The sudden termination of a good employee could harm the business in many ways. The employer should consider the criminal record wisely to ensure they do not dismiss an integral part of the team.
Another factor to give some thought to is the circumstances as to why the criminal conviction was not disclosed sooner, during the hiring process for example.
If an employee deliberately hides or withholds important information relating to their police history, this can be a breach of trust. However, there are other reasons why they might not have disclosed certain information.
Many people have spent convictions, which means they are no longer obligated to discuss these offences. There are other matters too where the court may have given the offender the right to non-disclosure following certain conditions or programs.
If the person has the right to non-disclosure, they have the right to keep the conviction hidden. Dismissing an employee on these grounds would not be legally fair.
What Happens if an Employee is Unlawfully Dismissed?
Unlawful dismissal is a complex topic. However, it is easy to avoid if you take the right precautions and do things properly.
If an employee believes they have been unlawfully dismissed, they may seek action by writing to the Australian Human Rights Commission (AHRC). The AHRC is an independent third party that deals with all complaints about discirmination and breaches of human rights.
Complaints can be made to the AHRC and they will investigate the complaints fully, resolving disputes as soon as possible. For this reason, wrongful termination can be very problematic if your decisions are revealed to be unfair. The AHRC will take action, and you could face fines and/or legal action.
Terminating an Employee Because of a Criminal Conviction
In most cases, dismissing an employee based on the record of a criminal conviction should be avoided wherever possible. It should only be an option where absolutely necessary.
If you firmly believe the dismissal to be necessary, be sure to go about it the right way. The termination process should be made easy, and with as little complications as possible. Make decisions cautiously, as upsetting an employee can cause multiple issues, regardless of whether your reason for the termination is valid.
Seeking expert advice from law firms is a good way to handle the situation. They will be able to determine if you are dismissing the person lawfully. It can be challenging for businesses to fully understand the terms and conditions of contracts. Professional services will ensure the procedure is done correctly, avoiding room for complications.
How to Handle the Termination
After much thought and deliberation, dismissing an employee may be the only possible outcome. For best practice, follow these guidelines to make the process as straightforward and as fair as possible;
- Be clear and concise when explaining the reasons for the termination
- Ensure all worker’s entitlements are adhered to such as paid leave
- Do not breach privacy laws – sharing the information contained in an individual’s criminal record without consent is illegal in Australia
- Abide by all anti-discrimination laws
- Abide by the Australian Spent Convictions Scheme
Opportunities to Prevent Employee Discrimination
Terminating an employee can be problematic, time-taking and an unenjoyable experience. To avoid these types of issues in the future, there are some steps an employer can take to reduce the chances of a repeat scenario.
Develop a Clear Policy
Creating a clear policy for the disclosure of criminal records provides a transparency that many potential employees will respect. By making it clear from the beginning how criminal convictions are handled within the company will help candidate’s to determine themselves if the job is suitable for them, and reduce the need for employees to hide criminal information for fear of not knowing what might happen should they disclose it.
Transparency in these scenarios is key.
Introduce Police Checks
Police checks are an incredibly useful tool for screening people for certain roles. It includes a criminal background check and a certified document containing any disclosable court outcomes the candidate has.
From here, decision makers can make informed choices about who to hire instead of terminating an employee further on when the information surfaces.
However, when a company introduces police checks as part of pre-employment screening, their request must be reasonable and in line with Australian law. Police checks should only be used if the information is relevant to the specifics of the position.
When Might a Criminal Conviction be Relevant?
As there are so many kinds of criminal convictions, it can be challenging to determine whether the offence is relevant or irrelevant to the occupation. Some convictions immediately disqualify a person from certain work.
This is especially important when the employee is working in a sensitive role, such as with children, the elderly and other vulnerable groups in society. Usually for these roles, a national police check is compulsory before the individual begins work. A police check ensures a clean start, mitigating risk in advance and saving complications later on.
Can I Terminate an Employee for a Criminal Conviction?
The criminal conviction of an employee is not automatic grounds for dismissal from the job. As an employer, you should never discriminate against your staff or potential employees. It’s important to create a harmonious workplace where employees are comfortable with the transparency brought by management, in an environment where people do not feel the need to lie or hide a criminal record.
Before deciding on the next course of action, always consider the important factors, including the impact on the business and the nature and severity of the conviction.
Where the termination is necessary, simply follow the correct protocol and seek legal services prior. Serious criminal convictions can have a major impact on an individual’s eligibility to work, so it’s important for all involved that the right measures are taken.