Do I have to tell my employer about my criminal record?

If you have a criminal record, it can be daunting to look for work. It is hard to know whether to disclose your criminal record on job applications and how much detail you should provide to a prospective employer. This blog will discuss the circumstances where you are required to disclose a criminal record and what protections are available to you in your employment if you do have a criminal record. 

What is a criminal record?

A criminal record is a formal record of the offences you’ve been convicted of, either through a guilty plea or a guilty verdict. If you have been convicted in multiple Australian states, you might have separate records in each state. 

What is a spent conviction?

A spent conviction is a criminal conviction that has lapsed after a period, which results in it being removed from a person’s criminal record. The idea behind spent convictions schemes is to allow former offenders to ‘wipe the slate clean’. There are differences across jurisdictions as to which convictions can become spent.

You are not required to disclose your criminal conviction for any purpose if it does not form part of your criminal history. However, there are exceptions. Certain jobs may require you to mention your criminal history even if your conviction is spent. This includes police officers, corrective services officers, Justices of the Peace, teachers, security guards, licensees, lawyers, and electoral candidates.

Do I have to tell my employer about my criminal record?

In Australia, there is generally no law requiring applicants to tell potential employers about their criminal record, even if it might affect the employer's decision to hire them. Only where legislation requires disclosure of a criminal record is an applicant required to disclose the information. For example, if the job requires working with children or for certain jobs in the defence or security industries.

For some jobs you are required to disclose a criminal record in order to obtain or retain a professional registration, for example, health practitioners (see below example). You should note that if an employer asks you about your criminal record, and you have criminal convictions that are not spent convictions, you should disclose them. Failure to disclose may be considered fraud or misrepresentation.

            Nurse engaged in professional misconduct by failing to disclose criminal record

In the case of Nursing and Midwifery Board of Australia v Dunjey, an enrolled nurse was found to have improperly obtained registration by failing to disclose to the Nursing and Midwifery Board of Australia that she had been charged with criminal offences. In 2019, she was convicted of obtaining a financial advantage by deception. The criminal conduct was particularly serious as it was deliberate, continued over a relatively long period of time and involved large sums of money (just below $100,000).

By failing to disclose her conviction and providing false or misleading information to the Board, the nurse was found to have engaged in professional misconduct. She was reprimanded, and her practice was subject to certain conditions. Her registration might have been suspended if not for certain mitigating factors.

In Queensland, if your conviction is spent, you cannot be forced to disclose your conviction. If you are asked about whether you have a criminal record in relation to a spent conviction(s) you are entitled to answer that question ‘no’. There are exceptions to this in relation to applications for certain kinds of employment, for example police. 

Do I have to tell my employer that I have been charged with a crime or offence?

If you are charged with an offence while you are employed, there is no blanket rule requiring you to inform your employer. However, depending on the crime you are charged with, you may be required to notify a regulatory body.

You should be aware that in certain circumstances, you need to disclose if you are charged with certain offences, even if you were not convicted or found guilty. If you are making an application where candour is important, it is more likely you would be required to disclose something like this.

Normally, this is a requirement of professional regulatory bodies. For example, if you are a health practitioner, you may be required to notify the relevant board of the Australian Health Practitioner Regulation Authority. In Queensland, if you hold a Blue Card (related to working with children), you may be required to notify Blue Card Services. These bodies typically have an obligation to notify your employer.

Additionally, if you work in the public service, you are required to immediately notify your employer of a charge or conviction.

Can an employee be dismissed due to their criminal record?

Some employment contracts contain a clause stating that you may be terminated without notice if you are charged with or convicted of a crime that is likely to bring your employer into disrepute.

Whether a clause of this kind will be enforceable against you if you are charged with a crime will depend heavily on your circumstances. In particular, it depends on whether the crime you are charged with has any link to your employment. There might be a clear link, for example, if you are charged with a crime alleged to have been committed while you were at work (like fraud), or the character of the crime ties in with your work, even if it was committed in your personal time.

Unfair dismissal is where an employee is dismissed in a harsh, unjust or unreasonable manner. There are several cases where employees have been unfairly dismissed as a result of their employer finding out about their criminal record.  

In the case of Kelvin Njau v Superior Food Group Pty Ltd, the Fair Work Commission ruled that there was no valid reason to dismiss an employee because of his criminal record. The employer had not made it a condition of employment that the employee must not have a criminal record. Additionally, such a condition could not be imposed unless it was directly related to the ‘essential requirements of the job’.

Workplace discrimination due to a criminal record

Whether it is lawful to discriminate against a person due to their criminal record depends on the state or territory law that applies.

Discrimination protections in the NT and Tasmania

In the Northern Territory and Tasmania, it is unlawful to discriminate against a person in the area of employment on the basis of “irrelevant criminal record”. The definition of irrelevant criminal record differs slightly between NT and Tasmania, but they have the following in common:

‘a record relating to arrest, interrogation or criminal proceedings where –

1. further action was not taken in relation to the arrest, interrogation or charge of the person; or
2. a charge has not been laid; or
3. the charge was dismissed; or
4. the prosecution was withdrawn; or
5. the person was discharged, whether or not on conviction; or
6. the person was found not guilty; or
7. the person's conviction was quashed or set aside; or
8. the person was granted a pardon; or
9. the circumstances relating to the offence for which the person was convicted are not directly relevant to the situation in which the discrimination arises’

In the Northern Territory you are able to make a complaint to the Northern Territory Anti-Discrimination Commission. In Tasmania, you may lodge your complaint with Equal Opportunity Tasmania. If the Commission accepts the complaint, it will hold a conciliation. If that conciliation is unsuccessful, the matter may be referred to the relevant tribunal. The tribunal has the power to award compensation or other non-monetary remedies if it is satisfied that the discrimination has taken place and was unlawful. 

Discrimination protections in other states and at a Commonwealth level

Unfortunately, in other states and territories, and federally, there is no law which makes it unlawful to discriminate against someone on the basis of irrelevant criminal record. This means an employer can treat you differently and less favourably than a person without a criminal record.

If a person is unable to fulfil the inherent requirements of the job because of their criminal record, this will not constitute discrimination. This is known as the ‘inherent requirements exception’.

The Australian Human Rights Commission may investigate complaints of discrimination on the basis of irrelevant criminal record and hold a conciliation conference between an employee and employer.  If the AHRC finds that discrimination took place, it cannot require an employer to pay any compensation or take any other steps to remedy to the discrimination. 

Get help from an employment lawyer

The law about your obligations to disclose a criminal conviction to potential or current employers can be complex and confusing. If you require assistance, please do not hesitate to contact one of our employment lawyers.  

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au