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Passage of time means employee with a criminal past was unfairly dismissed, despite the revelation of dishonesty

This case concerns an employee who had a criminal record prior to seeking employment with Superior Food Group Pty Ltd (the ‘Company’). The employee omitted some of these convictions on his employment application form, including the most recent and most serious conviction.

Significantly, the employee had consented to, and the Company performed, a Police Check which disclosed all of his previous convictions. However, it was over one year later that the Company sought to rely on the employee’s “failure to disclose prior criminal convictions” as a ground for dismissal. The Commission explained that this cannot now be a valid reason for dismissal due to the “passage of time” and the Company’s “failure to act promptly on the information it had available”.

The issue of dishonesty was also raised in this case, with it being admitted during the course of the proceedings that the employee had falsified information in his resume, such as by stating that he had worked for a particular business for over five years and had provided his wife as a referee, who had also never been employed by that business. The Commission found that this “created the wholly wrong impression that he had a history of stable, long term, relevant and recent employment.”

The Commission explained that this dishonesty which became known subsequent to the dismissal meant that the Company “could not reasonably rely on [the employee] to be honest in his dealings with the business” and it provided a valid reason for dismissal. Nevertheless, the Commission concluded that the dismissal was ultimately unfair, although because of the dishonesty, it was inappropriate to order reinstatement or compensation.

An important lesson here is the need to ensure clarity and specificity in the pre-employment and contractual documents as the Commission found that these documents “point to, but do not make clear, [the Company’s] expectations when dealing with the existence of a criminal record”. The Commission criticised the Company’s “entirely unjust approach” of seeking to “retrofit” a condition of employment into the employment contract and then rely on that ‘condition’ as a ground for dismissal.

The Commission warned that “A blanket rule that no person with a criminal record can obtain, or maintain, employment, is prone to difficulty”. The Commission emphasised how “[d]enying a person the opportunity for employment must be carefully considered in light of the inherent requirements of the particular role as well as the individual facts and circumstances”.

Njau v Superior Food Group Pty Ltd [2018] FWC 7626 (17 December 2018)


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