13 February 2019

In Kelvin Njau v Superior Food Group Pty Ltd [2018] FWC 7626 an employer who attempted to backdate a requirement that employees have a clean police record was found by the Fair Work Commission to have unfairly dismissed an employee who had a criminal past.

Criminal record not a valid reason for dismissal

The employee was employed by Superior Food Group Pty Ltd as a store worker from 4 April 2017 until 11 July 2018, when his employment was terminated on the grounds that a national police check showed a prior conviction.

The employee argued that his dismissal was unfair because the employer had full knowledge of his criminal record for more than one year before his dismissal, and it was not a requirement of his employment that he have a clean criminal record.

The Commission accepted that the employee had a criminal record before seeking employment with the employer and that he did not disclose all of his prior convictions.

However, the Commission determined that it was significant that the employee’s failure to disclose his criminal history to the employer occurred in circumstances where he had simultaneously consented to a police check. The Commission accepted the employee’s argument that, in providing his consent, he understood that his full history of convictions would be disclosed to the employer. The employer obtained the full police check on 19 April 2017, two weeks after the employee had commenced employment. Further, upon receipt of that information, the employer took no action to deal with either any concern it may have had about the existence of the employee’s criminal record or any allegation of dishonesty or lack of disclosure by the employee.

About one year later, the employer conducted a further audit of its staff and reidentified the issue with the employee’s criminal history and decided to dismiss the employee.

No valid reason to dismiss

Commissioner McKinnon found that the employer could not rely on the employee’s failure to disclose prior criminal convictions as a valid reason for dismissal given:

  • the passage of time; and
  • the employer’s failure to act promptly on the information it had available in 2017.

Commissioner McKinnon also held that the:

  • pre-employment checks and contractual documents relied on by the employer did not explicitly specify the employer’s expectations about whether employees could have criminal records; and
  • employer could not impose a condition that it would not employ any person with a criminal history without any relevant connection to the inherent requirements of the role.

Accordingly, the Commissioner McKinnon determined that the employee’s dismissal had been unfair.

Subsequent valid reason upheld by Commission

During the hearing evidence emerged that the employee had also lied on his resume about positions that he had held in the past and listed his wife as a reference for the longest of these roles.

Commissioner McKinnon found that this was a valid reason to dismiss the employee as it demonstrated that the employer could not reasonably rely on the employee to be honest in his dealings with the business.

As a result of the evidence that emerged in relation to a subsequent valid reason for the employee’s dismissal, despite finding the dismissal had been unfair, Commissioner McKinnon refused to reinstate the employee or make an order of compensation.

Lessons for employers

Employers should carefully consider whether an employee’s criminal history is relevant to the inherent requirements of the role.

A significant delay in acting on information may result in the employer being unable to rely on that information to dismiss the employee.

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