When a police check reveals a disclosable court outcome or any outstanding charges, the relevant manager in charge of the screening process must follow some basic steps before proceeding further.
At this stage, the relevant manager should:
a) Advise the employee that a criminal record has been released, so that the applicant has the right to dispute the court outcomes. (In the circumstance that they claim the outcomes are inaccurate and not connected to their name). This is mandatory.
b) Provide the employee an opportunity to be heard; and encourage an open and honest discussion about the findings.
c) Comply with the company’s assessment criteria in determining whether the employee’s criminal record jeopardises their suitability for their position;
d) Provide a recommendation to the senior management for a decision (if applicable).
In assessing the relevance and impact of an employee’s criminal record, it is best practice to consider the following factors
a) The relevance of the offence in relation to the nature of the employee’s position; for instance, if an employee has a record for shoplifting, whether or not it undermines their suitability as an aged care worker;
b) The time elapsed since the offence and the age of the individual at the time of the offence;
c) Whether it was an isolated offence or there has been a pattern of criminal behaviour;
d) The severity of the sentence; such as, whether a conviction was recorded, or the person was merely placed on a good-behaviour bond;
e) The employee’s length of service and performance within the organisation;
f) The employee’s individual circumstances surrounding the offence;
g) The proportionality of removing the employee from their position for the type of conviction;
h) The extent of risk that the employee would impose on the organisation if they continue in their role.
i) The disclosed criminal record and any changes in legislation relevant to the position.
Terminating an employee based on a criminal history
If the employee’s criminal history reveals a relevant criminal record and senior management finds that the employee is no longer suitable to hold their position, the organisation should explore their options prior to jumping in and terminating the employee.
The first option, if practical, may be to retain the employee within the organisation and transferring them into an alternative role which does NOT carry the same inherent risks as the role they are currently holding or applying for. This option may not always be practical but should be strongly considered before deciding to terminate the employee.
Once a decision has been made to dismiss the employee, the employer should consider the following:
1. Consider the employer’s obligations and responsibilities under anti-discrimination and unfair dismissal legislation;
2. Discuss the decision with the employee, outlining the requirements of the position and their unsuitability for the role;
3. Document the decision in writing (comprehensively documenting the decision allows the organisation to adequately respond to any allegations of wrong- doing at a later stage.); and
4. Seek legal advice before terminating to minimise exposure to a claim by the dismissed employee.