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Employee background checks: How to properly conduct one – HRm Online

By Alan J. McDonald


Recent events have prompted some employers to investigate a potential candidate’s criminal history during the hiring process. McDonald Murholme Principal Lawyer Andrew Jewell discusses when an employer can legally refuse employment to someone with a criminal record.

See below article for further details.

Employee background checks: How to properly conduct one – HRm Online

How far back should you dig into a candidate’s past? One recent event raised concerns about when and how you should conduct employee background checks. One legal expert answers your most frequently asked questions.

In a recent Senate adjournment speech, Victorian Senator Derryn Hinch publicly named a convicted child molester who was employed at McDonald’s. The revelation flipped a switch and set off a chain of events that prompted an investigation into the fast-food chains hiring process – particularly as it concerns employee background checks.

After the public backlash as a result of Hinch’s revelations, McDonald’s has now instigated compulsory criminal checks for applicants over the age of 18. This will be rolled out over the next two months. The issue of employee background checks and how they play out in employment law is complex. Here are some of the most common questions.

When can you refuse employment to someone with a criminal record?

There are specific industries where a prior conviction relating to the nature of work can allow the refusal of a job offer to a prospective employee.

A majority of these industries have measures in place to investigate the criminal history of any prospective employees – such as the Working with Children Check for those who are looking to gain employment working in schools, childcare centres or similar environments. If a prospective employee is found to have prior convictions that prevent them from working in such an industry, an employer is free to refuse employment for this reason.

Other industries, such as the finance industry, have the ability to deny employment to those whose employee background checks discover crimes of dishonesty.

What can you do if you have been refused employment due to your unrelated criminal record?

In some Australian states, but not Victoria, discrimination based on an unrelated past criminal record might enable a prospective employee to make a claim through the relevant Equal Opportunities Commission.

It is vital for employers to establish whether or not the past criminal conviction relates directly to the nature of the job before they refuse to hire an employee on this basis. However, the laws in Victoria do not protect a prospective employee in respect of their criminal record.

What about after employment?

Once employment has commenced, there are laws that protect an employee from discrimination based on their criminal past. It might be deemed harsh, unjust or unreasonable to dismiss an employee based on past convictions if the conviction is unrelated to the employee’s ability to perform their role.

For instance, an employer could not discriminate against a prospective employee working in a labouring role if they had a historical conviction regarding a property crime. If an employer unfairly dismisses an employee based on an unrelated prior conviction, the employee might be eligible to make a claim through the Fair Work Commission.

Checking into criminal history during the hiring process?

It is vital that employers are transparent during their hiring process, fully disclosing that a criminal background check will be conducted and giving the prospective employee every opportunity to disclose any previous convictions that might impact their employment.

If the prospective employee fails to disclose any industry related criminal convictions, an employer might be within their rights to terminate their employment for dishonesty.

Reference: Employee background checks: How to properly conduct one – HRm Online, 25th October 2016