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Criminal records and employment

While the internet has made the world seem smaller and more connected, the ability to have unlimited information at our fingertips carries a risk for employers that what is found on the internet will be used to unlawfully discriminate against people in their employment.

While the internet has made the world seem smaller and more connected, the ability to have unlimited information at our fingertips carries a risk for employers that what is found on the internet will be used to unlawfully discriminate against people in their employment.

Under Federal and some State anti-discrimination legislation, employers must not discriminate against a person on the basis of an irrelevant criminal record. This legal obligation often makes navigating recruitment and managing concerns of employee colleagues difficult.

In Stodart v The Employer [2022] FWC 277, the Fair Work Commission (FWC) recently considered an employee’s (the Applicant) conduct and behaviour toward management after she discovered that her colleague had previously been convicted of an historic sex offence and had served a period of time in gaol.

The Applicant was employed as a part-time retail employee for the employer (which operated supermarkets). The Applicant worked alongside a male colleague who she discovered, after a search of his name on the internet, had been convicted of a historic sex offence and had served time in gaol.

After the discovery of this information, the Applicant became uncomfortable with working around her colleague and also formed the view that younger female employees would also feel the same.  The Applicant reported her internet search findings to store management who escalated it to the Group Manager.

The Group Manager later met with the Applicant and advised her that it had received legal advice and that it could not take any action against the employee on the basis of his previous criminal conviction. The Applicant maintained her belief that the way the employee interacted with other younger female staff made them feel uncomfortable but was not able to provide specific examples. During the meeting, the Applicant made comments including that the employee should be “sacked” and that there was “something not right about him”.

The Group Manager advised the Applicant that unless the employee displayed inappropriate behaviour in the workplace, it would be unfair to dismiss him.

Following the meeting, the Applicant became more distressed and advised the employer that she did not want to work alongside the male colleague. The employer offered a temporary rearrangement of shifts and then met with the Applicant to discuss a permanent change in her roster. The employer offered to transfer the Applicant to another store or to roster her in a different part of the store while the employee was on shift. These offers were strongly rejected by the Applicant who maintained that it was the colleague that should be moved to a different store, have his hours cut or his employment terminated. The Applicant also made comments to the effect that the employee was a “paedophile” and was “grooming young girls” and that he should not be working with young people.

The employer again reiterated to the Applicant that it could not dismiss the employee if he did not engage in misconduct. At the end of the meeting, the Applicant said to the Group Manager, “You are not doing a great job.”

The Applicant was subsequently absent on a period of sick leave. After her return, the employer advised the Applicant of her new working arrangements, in particular, that she would be working in the online department. The Applicant took this work to be a demotion and described working in the online department as “something for monkeys”.

The Applicant was later issued with a first and final warning for her unprofessional conduct during the roster meetings.

The Applicant was dismissed from her employment following an outburst in front of customers and other reports of rude behaviour. The Applicant lodged an unfair dismissal application arguing that there was not a valid reason for her dismissal, her dismissal was disproportionate and denying that she engaged in serious misconduct.

The FWC was satisfied that there was a valid reason for the Applicant’s dismissal. The Applicant had engaged in clear instances of insubordinate behaviour and misconduct and the FWC found that there was a collective pattern of conduct of failing to show respect and courtesy to other employees and managers. The FWC was also satisfied that the Applicant was afforded procedural fairness.

In relation to the Applicant’s misconduct, the FWC noted that while the Applicant had felt that she had been punished for reporting her colleague’s criminal record, this did not render her dismissal harsh. The FWC found that the employer advised the Applicant to report concerns about her colleague and also sought to accommodate the Applicant because she did not feel comfortable with working with him. The FWC held:

"In short, her sense of righteous cause and objection to a person convicted of an historic sex offence working alongside her and other female staff obscured the legal, industrial and ethical minefield of competing rights and obligations faced by management when a person with a past criminal record is working in a business".

As the dismissal was found not to be harsh, unjust or unreasonable, the application was dismissed.

Lessons for employers

Employers have an obligation to ensure that they do not discriminate against an employee or prospective employee on the basis of a criminal record which is irrelevant to the job they are performing. This obligation also extends to ensuring that its employees do not engage in discriminatory conduct.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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