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.

Original article found HERE at SmartCompany.com.au

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.

Original article found HERE at SmartCompany.com.au

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.

Original article found HERE at SmartCompany.com.au