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If you have recently found out that an employee has a criminal conviction, you may be wondering if this is grounds to terminate the employee’s employment. The answer is not always clear cut. Whether you will be able to terminate the employment will depend on a number of factors, including: 

  • the nature of the crime;
  • whether your employee was convicted; and 
  • whether the criminal offence is relevant to your workplace or industry. 

If your employee committed the offence outside of the workplace, you will have to proceed carefully. As with any termination, you must also follow the correct and lawful procedure. 

This article sets out when a criminal conviction may lead to termination and the steps you should take. 

When Can I Take Action Against an Employee Based On a Criminal Conviction?

Before taking action, you should consider the circumstances of the offence, such as:

  • the nature of the offence (i.e. whether it was dangerous or could affect your employee’s day-to-day duties);
  • your employee’s position in the business; and 
  • any potential impact on the business (i.e. whether the offence could damage your business’ reputation or risk the safety of other employees).

Termination and Procedural Fairness

If you intend to terminate your employee’s employment, you will need to follow the correct process. You should review your employment contracts and policies to avoid any claims of wrongful termination or unfair dismissal. An employment lawyer can help you with this.

A criminal conviction does not automatically give you the right to terminate an employee’s employment. You need to consider a range of factors before terminating your employee for their behaviour outside work hours. 

In one case, a butcher’s assistant was charged with accessory to murder. The butcher dismissed the apprentice immediately. Despite the serious nature of the conviction, The Fair Work Commission decided that the dismissal was unfair. This was because the employer had dismissed the employee without any investigation. As a result, the employee was awarded six weeks’ wages as compensation. 

Can I Carry Out a Criminal Background Check on My Employees?

You are permitted to carry out a criminal background check as part of the recruitment process if a criminal background is relevant to the job. 

For example, a criminal background would be relevant if your employees: 

  • work with children or the elderly;
  • manage accounts; or 
  • drive a vehicle

However, you cannot use a conviction as a reason not to hire somebody if the conviction is not relevant to the duties they would perform as your employee. You should have a proper process in place to conduct background checks. Make sure you notify applicants that this is a mandatory step in the recruitment process. 

Discrimination 

If your employee’s conviction has nothing to do with their job, you should be careful to avoid discrimination. Discrimination in employement is prohibited under international and Australian law. If you discriminate against an employee based on previous convictions, you may be in breach of discrimination laws

Key Takeaways 

An employee’s criminal conviction does not give you an automatic right to terminate their employment. You will need to consider factors such as:

  • the nature of the conviction; and
  • the employee’s role in your business.

You should also be careful not to take unfair steps if there was no proven conviction. However, serious criminal activity may be sufficient reason to dismiss an employee. If you have any questions about terminating an employee’s employment as a result of a criminal conviction, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

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