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Lessons from the Greens about disclosing to your employer

Date: 17/08/2017

Hindsight is a wonderful thing, but you have to ask what was Metiria Turei thinking when she decided to tell the New Zealand public her story about defrauding the revenue whilst a beneficiary. And what might be worse was her decision to tell just half the story in the first instance.

The whole Turei debacle raises interesting issues from an employment perspective about what obligations employees have to disclose past criminal convictions or wrong doing.

The starting principle is that employees and job applicants are under no obligation to proactively disclose past crimes or wrongdoing. However, if an employer asks a job applicant if they have any previous convictions, they must answer honestly and provide full disclosure unless that conviction is covered by the Clean Slate Act.

The Clean Slate Act allows employees to deny having convictions for certain crimes, if they have had a clean record for seven years, and were not convicted of a “specified offence”. Specified offences include crimes against children and the mentally impaired. The New Zealand Herald reported in 2014 that 115,000 New Zealanders had taken advantage of the clean slate rules.

If an employer wants to be sure about a job applicant’s criminal history, a copy of their criminal record can be sought from the Ministry of Justice and the New Zealand Police. However the person’s consent is required, and the process can take up to 20 working days. Consequently, many employers go ahead and appoint employees before this process is complete.

To avoid running into issues down the line, employers should ensure that application forms clearly state that applicants must disclose all criminal convictions (unless the Clean Slate Act applies), what the consequences are for failing to provide honest and complete information, and that the job applicant will be asked for their permission before their criminal record is requested.

Where employers choose to appoint a person pending their criminal record check, the letter of offer should state clearly that the employment is conditional on the employer receiving a satisfactory criminal record check, and what the consequences will be if either the outcome is not satisfactory or the employee has not been honest.

If it is later discovered that an employee may not have been completely honest, then a fair process will still need to be undertaken. 

One employer learnt this the hard way when the Employment Relations Authority awarded $6,750 in compensation and 75% of three months wages to an employee after he was dismissed for failing to disclose two criminal convictions.

In this case, A v B Ltd, the employer discovered that the employee had failed to disclose two serious criminal convictions when applying for a new role within the company six years prior. Following an investigation, the employee was dismissed.

The Authority found the dismissal to be unjustified as there had been no criminal conviction check during the application process and the employee’s employment was not stated as being conditional on any subsequent discovery of a criminal conviction. The Authority also took into account the fact that the offences were discovered after 13 years of satisfactory service.

In another case, Richardson v Fonterra Cooperative Group Limited, an employee was awarded $13,000 in lost wages and $5,000 in compensation when he was dismissed after failing to disclose convictions he thought he didn’t have to declare.

Whilst the employer included a warning about failing to disclose convictions in the application form, the employment agreement did not specifically state that the employee’s continued employment was conditional on his honesty in disclosing any criminal convictions.

Different issues arise when an employee is charged or convicted of an offence whilst already employed. In such cases, an employer may be entitled to take disciplinary action against the employee if their actions have brought the employer into disrepute or where the nature of the offending renders them unsuitable for employment.

Again, however, an employer must follow a fair process and take into account all relevant factors before deciding to dismiss or take disciplinary action.

And so applying the learnings from the Turei debacle to an employment context, my advice to employees is this. Sometimes it is best not to overshare, but if you are asked a direct question, answer it honestly and fully as soon as you are asked. If an employer has to wait for the truth to dribble out, this is likely to adversely affect their trust and confidence in you.