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It presents a tricky situation for employers when faced with an employee or potential employee who has a criminal record, or a current employee who faces criminal investigation throughout the course of their employment.
All employers must be exceptionally careful as legislation states that if you refuse to hire someone based on a past conviction you could be in breach of your obligations.
In a previous article written in August 2015, we looked at a case where an apprentice butcher was charged with accessory to murder and as a result, was fired. The apprentice then claimed unfair dismissal as the employer had immediately presumed guilt while the apprentice had in fact been released on bail and a verdict was yet to be delivered. Click here to review the story.
Discrimination is a big part of the Fair Work Act however, whilst it is not completely unlawful under federal anti-discrimination law, it is prohibited under the International Labour Organisation Convention 111, states McDonald Murholme Lawyers, thus giving the Australian Human Rights Commission the ability to investigate any complaints and present to the Attorney-General.
If an employee is already engaged with the company and you then find out about a previous conviction, as an employer, you may be able to terminate employment and avoid an unfair dismissal claim. This determination however, is based on state legislation, along with the amount of time the employee has worked for you. In the instance an employee comes under investigation for a crime whilst employed with you, you must ensure guilt is not presumed until the investigation is complete, and a verdict has been given.
As an employer, it is important to always thoroughly investigate circumstances prior to taking any action, no matter if it is a potential employee or a current one. If faced with a situation such as above, avoid the confusion and call Employsure. Our team of specialised advisers will be able to guide you through any scenario and provide supporting documents and templates to ensure you remain compliant. Call us today on 1300 651 415.
Source: HC Online