Unfair dismissal and lying in recruitment

There are at least three circumstances in which a failure by an employee in a recruitment process to disclose previous criminal convictions will be capable of constituting a valid reason for the employee’s dismissal.

The first is lying about an absence of relevant convictions when asked. The second is failing to disclose such a conviction or convictions when it is made clear that candour about the same so is a condition of employment. And the third is failing to reveal the existence of a conviction or convictions when the employee knows or should know that the issue is relevant to the employer’s decision whether to recruit him or her or not.

Each of these circumstances is discussed in the following fair Work Commission decision on these points.

“Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

It is established that Njau had a criminal record prior to seeking employment with Superior Food Group and that he did not disclose all of his prior convictions to Superior Food Group in connection with his application for employment. 5 I do not accept that his failure in this regard was inadvertent or that he ‘ran out of room’ on the relevant form. There is space in the section on the document seeking information about past convictions. The disclosures made by Njau are also not the more recent, or more serious, convictions. While Njau says he only declared those convictions he remembered and thought were relevant to his application for employment,6 more recent driving related convictions in the same category of apparent ‘relevance’ were not disclosed. It is hard to reconcile his purported lapse of memory with the fact that the disclosed convictions occurred some years earlier than those which were more recent, and also relevant. The most recent (and most serious) conviction was not disclosed at all.

Njau’s failure to declare his criminal history to Superior Food Group occurred in circumstances where he had simultaneously consented to the Police Check. In providing his consent, Njau says he understood that his full history of convictions would be disclosed to Superior Food Group. That is what occurred. Superior Food Group obtained the information it required, in full, on 19 April 2017. 7 It took no action, once it had that information, to deal with either any concern it may have had about the existence of his criminal record, or any allegation of dishonesty or lack of disclosure about it. It was not until an audit more than one year later, in mid-2018, that it sought to extricate him from the workforce. Given the passage of time and Superior Food Group’s failure to act promptly on the information it had available, I do not consider that it can now rely on Njau’s failure to disclose prior criminal convictions as a valid reason for dismissal.

Superior Food Group have also not established that it was a condition of employment for Njau to ‘successfully pass’ a National Police Check, in the sense that he was required not to have any criminal convictions as a condition of employment. Nor, in my view, could it impose such a requirement without any relevant connection to the inherent requirements of Njau’s role. None of the documentary material tendered in the proceeding states that it is a condition of employment that Njau have a clear criminal record. At its highest, Njau was required to consent to a police check in connection with his application for employment. He provided his consent as required. What happened after that was a matter for Superior Food Group to deal with in consultation with Njau, having regard to the inherent requirements of the role. On my reading of his terms and conditions of employment, Superior Food Group had no automatic right to rely on the existence of Njau’s prior criminal record to justify his dismissal. It was not a valid reason for dismissal.

There is, however, another matter which I am satisfied was a valid reason for dismissal. By his own admission, Njau gave false information to Superior Food Group in his resume, in support of his application for employment. He gave the impression that he was employed by two businesses, Grays Online and Solar Lord, without disclosing that his work for those entities was through an employment agency. More seriously, however, he knowingly and falsely stated that he had worked at “Continental Biscuits Manufacturers” for more than five years. He provided a ‘referee’ from Continental Biscuits Manufacturers, Bertha Mhundwa, who had also never worked at that business and was actually his wife. 8 The period of employment said to have occurred with Continental Biscuits Manufacturers was his only period of employment, on paper, of more than one year. It created the wholly wrong impression that he had a history of stable, long term, relevant and recent employment.

In my view, this dishonesty, which only became apparent after the dismissal, was such that Superior Food Group could not reasonably rely on Njau to be honest in his dealings with the business. It was valid reason for dismissal.”

Njau v Superior Food Group Pty Ltd (2018) FWC 7626 delivered 17 December 2018 per- McKinnon C