Employment Issues – Undisclosed Criminal Record

by Bill Andrews - Snedden Hall & Gallop

Sometimes, the criminal conviction is many years old, but, in other cases, the charge is current and yet to be heard in the Courts.  Employers need to be careful how they treat such situations.

Recently, the Australian Human Rights Commission found that the New South Wales Department of Education and Training’s decision to refuse employment to a teacher applicant constituted discrimination in employment on the basis of a criminal record.  In that case, the applicant for the job had been convicted and gaoled for a number of criminal convictions up to 1992.  However, in the intervening years, he had completed a Bachelor of Music Education and a Graduate Diploma of Education before applying for employment in 2006.  The Commission found that the criminal history, which was then 14 years old, did not constitute the kind of non-disclosure that undermined the relationship of employer/employee.  The Commission President said, ‘it was difficult to imagine what additional steps Mr KL could have taken over this period of time that would strengthen the evidence of his rehabilitation and commitment to make a contribution to society and to the education system.  I do not accept that a person with Mr KL’s criminal record is necessarily rendered incapable forever of fulfilling the inherent requirements of the job of a teacher.’

Clearly, every case turns on its own facts and we suggest you contact our employment team of Lara Radik or Bill Andrews if you have any questions.

Bill Andrews, Director
(02) 6285 8087


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