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Dismissal harsh despite employee failing to disclose criminal record

The Industrial Relations Commission of New South Wales recently found an employee was unfairly dismissed from his employment after being summarily terminated on the basis he failed to disclose past criminal convictions.

Implications for employers

Before taking disciplinary action based on disclosure failures, employers should review the disclosure requirements contained in their employment documents and the way in which these are communicated to employees. In particular, employers should:

  • ensure all employees have sufficiently reviewed and understood any applicable codes of conduct that require them to maintain appropriate standards of conduct and work-related performance, including the truthful disclosure of criminal convictions;
  • document and record all details of communications and training with staff in relation to such codes of conduct; and
  • clearly identify and explain to employees what information should be disclosed.

Background

The applicant, RV, commenced employment with the New South Wales Department of Commerce (Department) in 1985. Until 2007, his duties involved carpentry maintenance and repair work on New South Wales Government properties - in particular, at public schools.

Both prior to and during the course of RV’s employment, RV had been convicted of a number of offences, all of which carried a possible penalty of 12 months imprisonment or more. In relation to one of the offences, RV served a six year jail term. The remainder of RV’s offences were punished by the imposition of minor fines.

On commencement of employment with the Department, RV completed an employment declaration form but could not recall being required to complete any form which obliged him to disclose his criminal record.

Following the introduction of child protection laws in New South Wales in 2005, the Department required RV to complete an employment criminal screening check and a prohibited employment declaration. The forms required RV to declare any criminal convictions for a “serious offence or registrable offence”. These offences included offences which carried a possible penalty of 12 months imprisonment or more. It was also a requirement under the Department’s Code of Conduct (Code) and supporting regulations that such convictions be disclosed by employees.

RV had poor reading and writing skills and usually relied on others to assist him in completing documentation. RV was not provided any assistance to complete the disclosure form required by the Department. Following RV’s review of the form, he was under the belief (albeit mistaken), that he was only required to make a declaration if he had spent 12 months in prison for offences relating to children. As a result RV did not disclose his previous criminal convictions - including the conviction for which he served a jail term.

Following the conduct of a criminal history check of RV, the Department was alerted to RV’s criminal background and he was suspended by the Department from working on school sites.

RV then applied to the Administrative Decisions Tribunal (ADT) for an exemption order to permit him to continue to work in his position. An interim order and then ultimately final orders were made by the ADT.

On receipt of final orders from the ADT, the Department became aware of the details and extent of RV’s criminal history and dismissed RV on the ground of misconduct for reasons that included RV’s failure to disclose his previous convictions as required by the Code and supporting statutory regulations.

Decision

The Commission identified the key issue in the proceedings to be whether RV had understood the requirement to report his previous criminal convictions and if he did, whether his non-disclosure was deliberate or wilful so as to support the allegation of misconduct made by the Department.

The Commission was of the view that the Department failed to communicate the requirements of its Code and supporting regulations to RV. As a consequence, RV did not understand that he was required to disclose his previous criminal convictions to meet his obligations under the Code and regulations.

Interestingly, the Commission noted there was no direct reference in the Code imposing a positive obligation on an employee to declare a criminal conviction, but rather, more general terminology relating to an employee maintaining appropriate standards of conduct and behaviour. In the Commission’s view, it was only if the Code was read in conjunction with the prescriptive requirements set out in the supporting regulations, that such an obligation could potentially arise.

As the Department was unable to demonstrate that RV was made aware of the requirements of the Code and supporting regulations, the Commission determined that RV did not commit a deliberate or wilful breach of their requirements. Although the Commission conceded RV’s understanding of what he was required to declare to the Department was mistaken, the Commission considered RV’s mistake understandable.

In these circumstances, the Commission held the dismissal of RV from his employment was harsh. In reaching this conclusion, the Commission placed emphasis on a number of mitigating factors including:

  • the low end range of punishment given by the courts in respect of RV’s criminal convictions for two offences;
  • the lack of a nexus between the nature of RV’s convictions and his employment;
  • RV’s age, work experience, narrow skill base and low literacy skills;
  • RV’s lengthy service with the Department; and
  • RV’s rehabilitation from his criminal past and commitment to work.

As a result, the Commission found it was compelled to make a finding that the Department failed to discharge its onus of proof that misconduct supporting the termination of RV’s employment had been established.

RV v New South Wales Department of Commerce [2009] NSWIRComm 21

Who does this affect?
All Australian employers

What do you need to do?
Ensure you are updated on recent developments

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