Police Clearances – What you need to know as an employer

A National Police Clearance is a summary of a person’s police history in Australia. It is a list of a person’s disclosable court outcomes and includes any pending charges from all jurisdictions across the country. Conducting a police clearance on a potential new employee is often a staple part of the recruitment process for many employers. The rationale being; to protect the business from any future criminal activity and to ensure a potential new employee, is trustworthy and of good character. There are, however, a number of key legislative provisions in the area of discrimination and privacy, which must be considered when undertaking police checks as part of a recruitment process.

 

Can I Request a Police Clearance?

 An employer can conduct a police clearance check on a potential applicant throughout the recruitment process. Any findings, however, should only be considered where there is a clear link to the inherent requirements of the role.

Where an employer believes that a potential employee’s criminal record may impede their ability to perform the inherent requirements of the position, they must get the person’s consent to conduct the check. It’s also important to advise potential candidates on the job advertisement and throughout the process that a police check may be conducted as part of the recruitment process.

 

Can I refuse to employ someone based on their criminal history?

An employer may be able to lawfully refuse to employ a prospective employee based on their criminal record where there is a clear link to the inherent requirements of the role. For example, a person with convictions related to assault and violence may be deemed unsuitable for a role that is responsible for the care of vulnerable people such as those with disabilities, the elderly, or children. Another example, is in the context of a person who has a criminal record related to fraud and financial crimes. In this scenario they may be deemed unsuitable for a role that requires them to deal with financial transactions or accounts within a business.

A person’s criminal history should not automatically disqualify them from potential employment, with each circumstance treated and assessed on a case-by-case basis. An example, where a person’s criminal record may have no impediment on the ability to perform the inherent requirements of the role, may be where a person has been convicted for driving offences and they are applying for a role as an accountant. In this situation, there may be no clear link between their performance of the inherent requirements of the role and their past convictions.

 

Practical Example

A 2018 inquiry conducted by the Australian Human Rights Commission (the AHRC), BE v Suncorp Group Ltd [2018] AusHRC 121, looked into the issue of discrimination in employment based on a person’s criminal record. The complainant raised a written complaint to the AHRC alleging discrimination based on a criminal record after a conditional offer of employment was revoked by Suncorp following a police check conducted on him.

The police check revealed that in 2008 he was convicted of accessing and possessing child pornography and sentenced to 12 months imprisonment. It further revealed that in 2015 he was fined for a failure to comply with reporting obligations related to these previous offences. After receiving the criminal record history, Suncorp discussed the findings with the applicant and later rescinded the offer. At no time did Suncorp cite the criminal record findings as rationale for rescinding the offer, however, the AHRC considered the merits of the matter and determined that the previous convictions were not sufficiently linked to a failure to perform the inherent requirements of the role.

The AHRC made a recommendation in this case that Suncorp pay the applicant $2,500 compensation and further recommended they revise their recruitment policies for people with criminal records and conduct further training for staff involved in recruitment decisions.

 

Key Considerations

There are several key considerations employers must keep in mind when requiring a police clearance check as part of a recruitment process, such as:

1.) Consider whether the job vacancy requires a police check and if any criminal history may impede an applicant’s ability to perform the inherent requirements of the role;

2.) If you intend to conduct a police clearance check, ensure that it’s written in the job advertisement and reinforced to applicants at time of interview that they may be subjected to a police clearance check;

3.) Ensure you get an applicant’s permission to conduct a police clearance check;

4.) Allow a candidate a right of reply and opportunity to explain any convictions that may be present on a police clearance check;

5.) Treat each scenario on a case-by-case basis; and

6.) Ensure the business has a prescriptive recruitment policy in place which is compliant with equal opportunity, discrimination and privacy legislation considerations in relation to police clearance checks on potential employees.

Want to know more? Contact CCIWA’s Employee Relations Advice Centre team on 9365 7660 or email advice@cciwa.com

 

 

 

 

 

Sexual Harassment in the Workplace – What do employers need to know?

This week, the Government released ‘A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces’. The Roadmap for Respect responds to all 55 of the Australian Human Rights Commission’s recommendations outlined in the Respect@Work report. In responding to this challenging issue, the Government has taken the approach to either agree in full, in principal or in part to the recommendations, or to simply ‘note’ them where they are directed to governments or organisations other than the Australian government, or where the government is able to achieve the intent of the recommendations through other means.

 

What is sexual harassment?

A number of high-profile sexual assault and harassment claims have been dominating the media headlines across Australia in recent months. Drawing attention to this crucial issue is a reminder for employers to have appropriate policies and procedures in place to deal with allegations of sexual harassment in the workplace. The Sex Discrimination Act 1984 (Cth) describes sexual harassment as any unwanted or unwelcome sexual behaviours, where a reasonable person, would have felt humiliated, offended or intimidated. This means, even if the conduct was intended innocently, or there was a belief there was a mutual attraction, if the other party found the conduct offensive or undesirable, it may constitute sexual harassment. Common examples can include but are not limited to:

  • unwelcome touching;
  • staring;
  • suggestive comments or jokes;
  • intrusive questions about someone’s sex life or body;
  • emailing inappropriate or explicit images to work colleagues; or
  • displaying images of a sexual nature around the workplace.

 

What is vicarious liability?

Employers can be held legally responsible for sexual harassment in the workplace, this is known as vicarious liability. An employer may not be held liable for such incidents, however, if they are able to demonstrate they have taken all reasonable steps to prevent the conduct occurring in the workplace. For example, in the Von Schoeler v Boral Timber[1], the employer was found to be vicariously liable and ordered to pay damages to a female employee, on the basis that they had not taken all reasonable steps to prevent the sexual harassment from occurring. In the Federal Court decision, the employer argued that as they had a “Working with Respect” policy and had provided refresher training on sexual harassment before the incident occurred, and they had taken all reasonable steps. The Court, however, disagreed with this argument finding the training provided to employees only defined what sexual harassment was and did not inform employees that sexual harassment is unlawful. Additionally, the Court found the employer’s “Working with Respect” policy failed to state employees would be subject to disciplinary action if they were found to have engaged in sexual harassment activity.

 

What should employers do if an employee makes a complaint of sexual harassment?

All employers should have a sexual harassment policy in place, that outlines the complaints and disciplinary process for managing sexual harassment complaints in the workplace. Ideally, a business should have a dedicated “Sexual Harassment Officer”, as the first point of call for an employee to make a sexual harassment complaint. Alternatively, if the business is not able to have a dedicated Sexual Harassment Officer, the Human Resources department or the relevant manager, can be responsible for receiving such complaints.

If an employee or relevant third party complains of sexual harassment, it should be taken very seriously, and a formal investigation should be carried out. The investigation process should involve:

  • obtaining clear details regarding the alleged incident or incidents;
  • interviewing the individuals and any witnesses involved; and
  • reviewing any relevant evidence that support or deny the allegation, such as CCTV footage.

It is crucial to maintain procedural fairness during the investigation process. In some cases, it may not be appropriate for employers to conduct the investigation themselves. In such instances, employers should consider engaging an independent third party to carry out the process. Conducting a procedurally fair investigation may also assist employers in any subsequent claims that may arise. For more information on how CCIWA can assist you with an investigation, please contact the Employee Relations Advice Centre on 08 9365 7660.  

 

How can employers prevent sexual harassment occurring in the workplace?

There are a number of steps employers should take to prevent sexual harassment in the workplace. These include, but are not limited to;

  • having a sound sexual harassment policy in place, and:
    • clearly communicating to employees what sexual harassment is;
    • how, and to who, they can make a complaint; and
    • what the potential consequences are for breaching the policy.
  • conducting training sessions for new and existing employees on the policy;
  • ensuring managers are trained in how to handle complaints of sexual harassment; and
  • swiftly investigating any claims of sexual harassment.

Any changes to the company sexual harassment policy should be communicated to all employees and relevant parties.

If your business does not currently have a sexual harassment policy in place, or you need assistance developing sexual harassment training, contact CCIWA’s Employee Relations Advice Centre team on 9365 7660 or email advice@cciwa.com

 

[1] Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020] FCAFC 13

Managing injuries that occur outside of the workplace

My employee needs to be on light duties because of a weekend sport injury (unrelated to work), but we don’t have any roles that meet that requirement, can we terminate them?

 

Regardless of where an injury occurs, employers have an obligation to support and accommodate their employees safe return to work. Under s352 and s772 (1)(a) of the Fair Work Act 2009 (Cth) (the FW Act), an employee is protected from termination of their employment as a result of a temporary absence from work due to illness or injury.

A temporary absence is defined as an illness or injury where a medical certificate or statutory declaration is provided within a reasonable time and, the absence of the employee, within a 12 month period, does not exceed three months. An employee is no longer considered to be on a temporary absence once the three month period has expired and all paid personal leave entitlements have been exhausted. Employers should avoid terminating employees prematurely to prevent lengthy and costly adverse action claims, with damages being uncapped.

In certain circumstances, it may not be feasible for the employer to accommodate the employee past the expiry of the temporary absence. An employer may be able to terminate the employee if they can prove the employee is unable to perform the inherent requirements of their role. Employers must also be able to show that the continued employment or alterations required for the employee to continue employment pose unjustifiable hardship on the employer.

Employers should ask for additional medical information pertaining to the injury or illness and discuss with the employee to determine the best course of action for a safe return to work. It is important to determine whether the employee will be able to perform the inherent requirements of the role in the foreseeable future without posing unjustifiable hardship on the employer. However, unless there is explicit instruction in any relevant industrial instrument, before requesting additional information or an independent examination, employers should consider if the request is lawful and reasonable.

Swanson v Monash Health[1] illustrates that an employer can lawfully and reasonably request an employee to attend an independent medical examination to gather further information in determining if the employee can perform the inherent requirements of their position, whether after a period of restricted duties or where the employee is fully unfit. The employee should be made aware that if they refuse to comply with a lawful and reasonable request for additional information from the employer, they may be subject to disciplinary action up to and including termination.

Things to remember:

  • Keep the employee informed of their position and your intentions
  • Discuss and work with the employee regarding a return to work plan that accommodates any restricted duties
  • Ensure that in any instance where the employee is returning to work you do not expose them to reasonably foreseeable risks that may exacerbate their injury
  • Ensure that if you require addition medical information or an independent medical review, such a request is lawful, reasonable and that you are doing so to determine the employee’s ability to perform the inherent requirements of the position. The assessment may also inform whether any reasonable adjustments will need to be made to facilitate the employee’s capacity to perform their role
  • Do not jump to conclusions of the employee’s ability to perform the inherent requirements of the role. Rely on medical evidence and react accordingly.
  • Keep records of any conversation regarding the employee’s injury or illness and return to work

For further information or queries on temporary absence please contact the CCIWA Employee Relations Advice Centre on (08) 9365 7660 or email advice@cciwa.com.

For further information or queries on return to work please contact the CCIWA Safety & Risk team on (08) 9365 7415 or email osh@cciwa.com.

 

[1] Swanson v Monash Health [2018] FCCA 538