Businesses are entitled to ask prospective employees about their criminal pasts, but should be careful when responding to the answers, according to employment law experts.
On Tuesday Victorian senator Derryn Hinch said in a Senate adjournment speech that he had previously urged McDonald’s Australia to implement compulsory criminal background checks to ensure the restaurant chain does not inadvertently hire individuals that had been convicted of child sex offences.
In response to Hinch’s concerns, McDonald’s Australia says it took “immediate action” and will amend its background check policies.
“We have made the decision to implement criminal background checks for all adult employees moving forward,” the company told SmartCompany this morning.
“We also have substantial existing protections in place, from hiring policies to ongoing training.”
Australian businesses are entitled to conduct police record checks on prospective employees but employment lawyers warn that SMEs should know how to use the results – and that the answers to questions might cause more problems.
“Employers do need to be conscious that there is spent convictions legislations in every state except Victoria,” employment lawyer Peter Vitale told SmartCompany.
“This means you cannot discriminate against someone for a less serious offence if it happened more than ten years ago.”
While recruiters can require applicants to consent to a criminal record check, asking questions about someone’s criminal record in an interview could cause more problems than it solves.
“You can’t just discriminate against someone on the basis of any record at all – you have to show that it will affect the job,” Vitale says.
“With job interviews, you have to be careful – some of the answers given could give rise to the idea that you have unlawfully discriminated against an applicant.”
This means some offences may not constitute a reason to refuse an applicant work – the offence must be a barrier to the individual performing the job.
“Think hard about what element of the job is affected by the conviction,” says McDonald Murholme principal lawyer Andrew Jewell.
“Try to marry up the crime with it actually being relevant to the job – you can’t just say, ‘they’re a criminal, we don’t want them’.”
“For example, convictions for traffic offences will really only be relevant for those going for driving jobs,” adds Vitale.
Asking about a criminal record in an interview can give an employee a chance to get ahead of any convictions and explain them. Jewell says that legislation in Victoria is more complex on this issue, but all employers should be wary that if they act on a disclosure of criminal history and it is not directly relevant to the role, these answers could play a part in unfair dismissal disputes later.
Employers should also be aware that a police check will not necessarily reveal all history.
“There are things like diversion programs out there and these can be applied to relatively serious crimes,” says Jewell. Where an individual has agreed to a diversion program or other measure to avoid conviction, this will not appear.
Taking a measured approach to interviews and keeping track of what is said may also help to avoid problems later, because while employees are protected from discrimination, they cannot lie about their history when asked.
“Probably this arises most when an employer says ‘we’re bringing in criminal checks’ – they get suspicious when any employees refuse them,” says Jewell.
But if an employee has been dishonest in the past about part or all of their past convictions, businesses can review that staff member’s employment, he says.
A window and doors installation business that was found to have unfairly dismissed a worker for failing to show up on a job site says it doesn’t know what else it could have done after spending months trying to resolve a tenuous relationship with the employee.
On Friday the Fair Work Commission decided Architectural Project Specialists (APS) was wrong to summarily dismiss one of its installers on May 19 of this year. The employer contacted the worker via voicemail and text message on this date to inform him the business needed a company car and tools returned because “we’re moving on”.
The Commission heard the decision to dismiss the worker was made after he failed to attend work on May 17 and didn’t let the business know about his absence.
The employee told the Commission he had been struck down with food poisoning between May 17 and 19 and this was the reason for his non-attendance, and the company’s managing director said he received a text message from the worker on the the morning of May 18 that read: “Been feeling shit bro not going to make it. Sorry.”
The company says it had previously warned the worker about poor attendance “a hundred times”, and on May 19, after checking in with the employee to ask whether he was going to return to work but not receiving a response, the company sent notification that he was no longer employed by the business.
Fair Work Commission deputy president Susan Booth decided the worker was covered by the Small Business Fair Dismissal Code, as the business had nine employees at the time of dismissal.
She considered whether the actions of the worker made a summary dismissal appropriate, but found under the circumstances, failing to attend work and not being contactable for 24 hours was not serious enough behaviour for an automatic firing.
Booth observed that while the business said the worker’s non-attendance had been a pattern of behaviour over some time, the company was not able to provide evidence of warnings to the employee or instances where his wages were affected by non-attendance.
“It would have been a simple matter to produce time and wages records to substantiate this contention, however, despite APS being given an opportunity to provide more information to the Commission after the hearing, nothing was provided,” she said.
As a result, the Commission found there was “no valid reason” for the dismissal, which she said was “harsh, unjust and unreasonable and therefore unfair”.
Booth decided reinstatement in the role was inappropriate and will now consider the amount of compensation APS will have to pay the worker.
Speaking to SmartCompany this morning, a spokesperson for APS says the business had done everything it could to support the employee, and is disappointed that despite sending “so many warnings”, the decision to dismiss the worker will lead to the company paying compensation.
“From around the start of this year, we thought, ‘this is not going to work out’,” the spokesperson says.
The business says it will take more care in hiring people in future, with the spokesperson claiming the business spent significant time trying to help the worker in his personal life.
“I don’t know what else we could do. I think you just can’t get personal with these things,” says the spokesperson.
SmartCompany was unable to contact the worker for comment this morning.
Keeping records is key
Rachel Drew, a partner at law firm Holding Redlich, says small businesses often face challenges when giving warnings to staff, because it’s typical for the bulk of their communications to be done in person, rather than through formal human resources channels.
“It is more common for warnings and discussions to be had very informally,” she says.
“But when it comes to the Commission, and providing evidence around communications to do with performance, the employer needs to be able to show concrete evidence.”
If an employer in a small business finds they need to communicate a warning to a staff member about an issue like attendance, emails are your best bet, Drew says.
“Emails include proof that they have been sent as they are marked with the date and time,” she advises.
“Text messages are also okay, but worst case scenario, a business should still be keeping a calendar record that says, ‘we had a conversation [with a worker] about this issue, on this date’.”
Drew reminds businesses that no matter the size of the company, summary dismissals are reserved for the most serious conduct breaches, like fraud, theft or assault in the workplace.
When it comes to absences from work, Drew says previous decisions from the Fair Work Commission suggest an employer must inform a worker that their non-attendance could result in termination before they actually take this step.
“It is a very difficult scenario, but you do have to make sure that absent employee is aware and that they appreciate you are considering a termination,” she says.
Small businesses have been put on notice to obey their obligations to staff, with the Fair Work Ombudsman revealing over 20,000 anonymous tip-off claims have been made about dodgy workplaces over the past 18 months.
Since being launched in 2016, the anonymous tip-off service has been providing information to the ombudsman’s office about where to focus its resources and have the most likelihood on cracking down on non-compliant businesses.
Of the complaints, 10,000 were received within the first 11 months of the program’s launch. That number doubled to 20,000 in the following eight months, indicating an increase in the program’s use.
The tip-off service was updated in July to allow workers to report to the Fair Work Ombudsman (FWO) in 16 languages. Nearly 800 tip-offs have been made in a language other than English, the majority of them in Chinese and Korean.
Hospitality businesses made up 36% of all tip-offs, with complaints in the retail industry the next most-reported.
In a statement, Fair Work Ombudsman Natalie James said the anonymous reporting tool provides workers the ability to report potential workplace breaches without the risk of backlash from employers.
“We always urge employees to come forward if they have concerns in the workplace, but we appreciate that it can be a hard thing to do,” said James.
“With our anonymous report tool, workers can come to us and tell us what is happening now without the risk of being identified.”
When contacted by SmartCompany, a spokesperson for the Fair Work Ombudsman declined to reveal how many businesses have been investigated as a result of the tip-off service, but said each tip-off is examined.
“Tip offs have led to both audits of specific businesses as well as broader campaigns targeting specific regions, locations and/or industries, securing positive outcomes for workers,” the spokesperson said.
Being bullied as a child, being female, young, and neurotic are significant predictors of whether you might be bullied in the workplace, our online anonymous survey shows.
Our team investigated the personality traits and coping styles of workplace bullying victims which might contribute to their victimisation.
Neuroticism is defined as a vulnerability to negative mood states such as excessive worrying, anxiety, anger, hostility, self-consciousness, and difficulty coping with stress.
Destructive behaviours such as bullying or harassment reduce employees’ potential at work, in turn increasing businesses’ operational costs. They are often associated with staff absence, increased sick days, and high staff turnover, which are also expensive for organisations.
Our study showed that most employees suffering repeated abuse at work nevertheless chose to continue attending. Yet only a small percentage reported taking action towards changing their situation – 10% of individuals had attempted to resolve the situation and 9% had made a complaint.
Presenteeism contributes to a loss of work productivity. An Australian Medibank survey in 2011 showed that presenteeism results in the loss of an estimated 6.5 working days per year, per employee. This cost an estimated A$34.1 billion to the Australian economy over 2009 and 2010.
These statistics show that although employees might keep going to work, they do not maintain their previous standards when their mental health is compromised.
What neuroticism looks like in the workplace
Neuroticism and mental health difficulties are often expressed in subtle ways.
For example, an employee might become excessively worried about missing work and professional opportunities, or unreasonably concerned about what others will think or do in their absence.
But mental distress is not always a function of personality. Resilient people can also be brought to breaking point by the “climate” at work without the control to change it.
Bullying takes many forms
Safe Work Australia defines workplace bullying as repeated and unreasonable behaviours directed towards a worker or a group of workers creating a risk to health and safety.
But bullying is not limited to overt behaviours. Covert and subtle victimisation, such as spreading gossip about someone or deliberately excluding them, also causes distress.
Concealed harassment tactics often involve abuse of power that functions to silence potential complainants.
Organisational policy is one effective way to stop bullying and incivility at work. However, there is a difference between policy and application. Most bullying policies only tackle overt behaviours.
What should be done?
Suffering in silence and not seeking help is costly to individuals and organisations. On the flip side, workplace psychological safety increases productivity.
According to the Mental Health Commission of Canada, employers who invest in psychologically safe workplaces see the benefits not only in productivity but also in recruiting and retaining staff, reduced workplace conflict, and declining costs of disability and absenteeism.
But to tackle the problem effectively, workplace policies need to tackle all types of bullying behaviours, both overt and covert.
Whether the individual chooses to leave or stay at work, the consequences of bullying persist for years and are never forgotten. All workplaces should provide effective policies for managing continuing abuse and improving the mental health outcomes of individuals after bullying.
Barnaby Joyce’s affair with his former staffer Vikki Campion, and his subsequent downfall from the position of deputy prime minister and head of the National Party, made headlines for weeks. It’s not surprising. From politicians to actors and entertainers, stories of high profile individuals caught “cheating” on their partner often make front-page news.
We believe a romantic partner is there to provide us with love, comfort and security. So people are quick to make judgements and lay blame on perpetrators of what they see as a significant violation of relationship norms and betrayal of trust. Infidelity highlights the potential fragility of our closest and most important of relationships.
But despite the blunt belief infidelity is the result of immoral and over-sexed individuals wanting their cake and eating it too, the reality is far more nuanced. For instance, infidelity is rarely just about sex. In fact, when it comes to purely sexual infidelity, the average occurrence across studies is around 20% of all couples. However, this rate increases to around a third of couples when you include emotional infidelity.
An affair is generally a sign things aren’t right with someone’s relationship. Without the necessary skills to heal the issues, a partner may engage in an affair as an ill-equipped way of attempting to have their needs fulfilled – whether these be for intimacy, to feel valued, to experience more sex, and so on. So, the straying partner views an alternative relationship as a better way to meet these needs than their existing relationship.
Who has affairs, and why?
Studies into why people cheat are many and varied. Some find people who lack traits such as agreeableness and conscientiousness are more likely to be sexually promiscuous, as are those higher in neurotic and narcissistic traits. Other studies find infidelity is more likely to occur among people who hold less restrictive views about sex, such as that you don’t have to limit yourself to one sexual partner.
Other important factors relate to people’s commitment to their partner and relationship satisfaction. Those low on these measures appear more likely to have an affair. Recent work suggests one of the biggest predictors of having an affair is having strayed before.
A survey of 5,000 people in the UK found striking parallels between men and women’s reasons for infidelity, and neither prioritised sex. The top five reasons for women related to lack of emotional intimacy (84%), lack of communication between partners (75%), tiredness (32%), a bad history with sex or abuse (26%), and a lack of interest in sex with the current partner (23%).
For men the reasons were a lack of communication between partners (68%), stress (63%), sexual dysfunction with one’s current partner (44%), lack of emotional intimacy (38%) and fatigue or being chronically tired (31%).
So if we have difficulty genuinely communicating with our partner, or they don’t make us feel valued, we may be more likely to stray. People need to invest time and energy into their relationships. Experiencing chronic tiredness over many years means one’s capacity to put in the necessary work to keep a relationship strong is also compromised.
While some couples report additional reasons, which can include a greater desire for sex, the majority speak to issues that reside either within the couple or outside the relationship. The latter can be stressors that challenge the couple’s ability to make the relationship work.
If you’re experiencing relationship difficulties, getting help from a therapist may well short-circuit the risk factors that can lead to infidelity.
Disclosure and therapy
Some people choose to keep their affair secret because they may want it to continue, feel too much guilt or believe they’re protecting their partner’s feelings. But the secret only perpetuates the betrayal. If one is serious about mending their existing relationship, then disclosure is necessary, along with seeking professional guidance to support the couple through the turbulent period towards recovery.
There are various evidence-based approaches to dealing with infidelity, but most acknowledge the act can be experienced as a form of trauma by the betrayed person, who has had their fundamental assumptions about their partner violated. These include trust and the belief that the partner is there to provide love and security rather than inflict hurt.
But it’s not only the betrayed person who can experience mental health issues. Research has found that, when the affair is revealed, both partners can experience mental health issues including anxiety, depression and thoughts of suicide. There can also be an increase in emotional and physical violence within the couple.
So a couple should seek professional help to deal with the aftermaths of an affair, not only to possibly heal their relationship but also for their own psychological well-being.
There are many approaches to counselling couples after an affair, but generally, it’s about addressing the issues that precipitated and perpetuated the infidelity. One of the most well researched methods of helping a couple mend these issues involves addressing the initial impact of the affair, developing a shared understanding of the context of the affair, forgiveness, and moving on.
Choosing to stay or go
Overall, therapy seems to work for about two-thirds of couples who have experienced infidelity. If a couple decides to stay together, they must identify areas of improvement and commit to working on them.
It’s also vital to re-establish trust. The therapist can help the couple acknowledge the areas of the relationship in which trust has already been rebuilt. Then the betrayed partner can be progressively exposed to situations that provide further reassurance they can trust their partner without having to constantly check on them.
But if therapy works for two thirds of couples, it leaves another one third who experience no improvement. What then? If the relationship is characterised by many unresolved conflicts, hostility, and a lack of concern for one another, it may be best to end it. Ultimately, relationships serve the function of meeting our attachment needs of love, comfort and security.
Being in a relationship that doesn’t meet these needs is considered problematic and dysfunctional by anyone’s definition.
But ending a relationship is never easy due to the attachment we develop with our romantic partner. Even though in some relationships, our attachment needs are less likely to be fulfilled, it doesn’t stop us wanting to believe our partner will (one day) meet our needs.
The impending end of a relationship fills us with what is termed “separation distress”. Not only do we grieve the loss of the relationship (no matter how good or bad), but we grieve over whether we will find another who will fulfil our needs.
The period of separation distress varies from person to person. Some may believe it’s worth celebrating the end of a toxic relationship, but they will still experience distress in one form or another. If the couple decides to end the relationship and are still in therapy, the therapist can help them work through their decision in a way that minimises feelings of hurt.
So infidelity is less about sex and more about matters of the heart and a misguided quest to have one’s relationship needs met. The problem is that some people choose to seek their relationship needs in the arms of another rather than working on their existing relationship.