by Jones + AssociatesCriminal Convictions, Criminal History and Employment
Impact of Clients’ Criminal Matters on Their Job and Employment Prospects in the Future
Clients are often concerned about the impact of their criminal matters on their job and employment prospects in the future. While this article provides important information for people facing criminal convictions or with a criminal history, employers should also take note. While some employees simply cannot do their job because of their criminal history (for example, where they require security clearances), employers should take care when making hiring decisions where applicants have a criminal history. Where a person’s ability to do their job is in no way impacted by their criminal history, employers must take care not to fall foul of anti-discrimination law. Additionally, it may pay to enquire as to the circumstances surrounding an applicant’s offending. Your best employee may have made a foolish mistake or shown a lapse in judgement which has resulted in their criminal history. Jumping to conclusions about a person’s trustworthiness may be at the cost of securing the most competent, hardworking, and loyal employees.
If you are convicted of a criminal offence and a conviction is recorded against you, your criminal history may impact your current employment or your ability to get work in the future.
Employers seek information about current and potential employee’s criminal histories in a number of ways such as:
- Asking for the employee to disclose their criminal history;
- Asking more specific questions such as whether you have ever gone before a Court in relation to a criminal matter or pleaded guilty to a criminal offence;
- Asking for consent to conduct criminal history checks;
- Requiring that employees consent to policies that impose disclosure obligations for any criminal convictions that arise during the course of the person’s employment.
If you are concerned about how your current criminal matters or past criminal convictions may impact your current or future employment, you should obtain legal advice as soon as possible.
Rehabilitation Periods
Certain convictions are subject to what is known as a rehabilitation period. When the rehabilitation period expires, you are entitled to state that you do not have a criminal history, except in certain, limited circumstances. When an adult is convicted on indictment (i.e. in the District Court or the Supreme Court of Queensland) and a conviction is recorded against them, the rehabilitation period usually occurs 10 years after the date of the conviction.
Where a conviction is recorded, other than on indictment (i.e. in the Magistrates Court), the rehabilitation period usually occurs 5 years after the date that the conviction is recorded. Subject to limited exceptions, where the rehabilitation period has expired, it is lawful for a person to claim that they have not been convicted of an offence.
Rehabilitation periods do not apply to certain offences, specifically, where the person has been sentenced to serve any period in custody or a period not exceeding 30 months in custody. This applies whether or not the person actually serves any part of their sentence in custody.
Current Employment
Situations can arise where an employer assumes or for some other reason, incorrectly believes that their employee does not have a criminal history. Where an employer later discovers that this is not the case, the Fair Work Commission has found that, in some instances, undisclosed criminal history is an insufficient basis upon which to terminate a person’s employment.
In Njau v Superior Food Group Pty Ltd [2018] FWC 7626, the Fair Work Commission found that an undisclosed criminal history was not a sufficient basis for dismissing an employee. In that case, the person’s employer could not establish how her criminal history made her unfit for her position. In this matter, the employee did not comply with the employer’s policy to disclose relevant criminal convictions. Some years after starting her employment, her employer asked to conduct criminal history checks on her. Initially, she resisted this but ultimately, she co-operated, and her criminal history came to light. In this situation, the employee’s dishonesty in not disclosing her convictions when she was initially employed was found to be disproportionate to the employer’s response in terminating her employment. Significantly in this matter, the employee was able to perform the functions of her role despite her criminal history.
It’s important to remember that the financial compensation recoverable through the Fair Work Commission in unfair dismissal matters is limited. Reinstatement of employment is described as the ‘primary remedy’ under the Fair Work Act 2009 (Cth) however it will not be ordered if the Commission is satisfied that reinstatement is inappropriate. Reinstatement will not be appropriate where the relationship between the employee and the employer has broken down to an extent that it is simply impractical for the two to work together again. It’s easy to see how this relationship might quickly disintegrate prior to or in the course of litigation.
This is a significant consideration for applicants when disclosing their criminal history in the course of applying for new employment opportunities. While it may be difficult or embarrassing to disclose criminal history, failure to do so when directly asked may jeopardise your prospects of obtaining reinstatement as a remedy if your history is subsequently discovered and your employer moves to terminate your employment on the basis of your criminal history.
Importantly, these cases turn on their specific facts and may or may not be relevant in considering your circumstances. If you are concerned about your criminal history and whether or not it will impact your prospects of employment in the future or your current employment, you should seek legal advice.
The Law – Human Rights and criminal history
The Australian Human Rights Commission also offers some recourse to people who are subject to adverse action in their employment situation as a result of their criminal history. In the 2015 case of AW v Data#3 Limited [2015] AusHRC 105, the Commission considered a complaint from an employee whose employment was discontinued when his employer became aware of a criminal history he had. The criminal history related to the sale of dangerous drugs.
Ultimately, the Commission found that it was discriminatory to terminate the complainant’s employment on the basis of his criminal history. The Commission recommended that the employee be compensated for the earnings he lost as a result of the discriminatory termination and for the personal distress caused to him. The amount ordered was approximately $75,000.00.
In that matter, it was a fundamental consideration that although employees may be required to obtain security clearances or pass police checks on any given project, the ability to do so was not an inherent requirement of every person holding the position.
Importantly, while this matter establishes that there may be recourse to the Australian Human Rights Commission in instances where an employee is discriminated against on the basis of their criminal history, each matter is different and must be considered on its own specific facts.
It is important to note that while the Commission is empowered to conciliate these matters, they cannot order the payment of compensation.
If you or someone you know is currently concerned about the impact of their criminal history on their current or future employment, call Criminal Lawyers Brisbane at Jones + Associates for legal advice.
by Jones + AssociatesWhat are Your Rights under Criminal Law?
Thanks to TV shows and pop culture, many people believe they understand how the criminal justice system works. Police shows, procedural dramas and legal adaptations tend to create a false sense of familiarity with the criminal justice system in the average person. But while loose cannon cops and lawyers who bend the rules make good television fodder, they have very little in common with the realities of police-work and legal professionalism. If you find yourself caught within the criminal justice system, it is important to remember that you have rights.
Arrest
When being arrested, there are three procedural steps that officers are required to follow. The officer must tell you that you are under arrest and briefly explain why, and you must either voluntarily surrender to the officer or you will be taken into custody through force. Police in Queensland do not have to “read you your rights”, and though you do have the right to remain silent, you are still required to inform the arresting officer of your name and address in order to avoid additional charges. Once arrested, you will escorted by the arresting officer to a police station or watch-house to be processed and await court or given bail.
Warrants
The police are not required to have a warrant in order to arrest you. If they have a reasonable suspicion that you are breaking the law, have broken the law, or are about to break the law, they have the power to arrest you as a reasonable necessity, because of the type or seriousness of the offence, or in order to:
- stop you from breaking more laws;
- discover your identity;
- ensure a court appearance;
- obtain or retain evidence;
- prevent the creation or destruction of evidence;
- prevent witness harassment or interference;
- protect your safety and the safety of others;
- prevent your escape; or
- hold you for questioning.
The threshold for demonstrating reasonable necessity is generally low and the police will likely be allowed to arrest you without a warrant. It is in your best interests to calmly comply, ask for a lawyer as soon as possible, and remain silent except for providing your name and address, until your lawyer arrives.
What Are My Rights?
You have the right to remain silent and wait for the arrival of your lawyer. You cannot be formally interviewed until the police inform you that you have a right to a lawyer, a family member, or friend. Importantly, you must remember that the police are not allowed to coerce a confession out of you by making false promises or threats. As mentioned above, the police must inform you that you are being arrested and explain to you why.
Additionally, you have the right to go to court for a bail application at the earliest reasonable opportunity, and if you are not taken straight to court, you have the right to ask the police for bail. Remember that without an arrest you do have the right to refuse a request to come to the police station, but be careful to handle the situation calmly and respectfully or else risk an actual arrest or additional charges.
Being Arrested for Questioning
When the police have a reasonable suspicion that you have committed an indictable offence, they are able to detain you for a reasonable amount of time in order to conduct an investigation and/or question you about the offence. Police may detain you for up to eight hours, but can only question you for four hours out of the eight. If they want to keep you longer, the police must petition a magistrate or justice of the peace to question you for a further period. During this time period, you still have the right to remain silent after sharing your name and address.
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At Jones + Associates, we are dedicated to securing the best possible outcomes for our clients. Contact us criminal lawyers Brisbane today.
by Jones + AssociatesHelp with drug charges & rehabilitation for you or your loved one
Drug Charges & Rehabilitation
Over the last 4 years, Jones + Associates have utilised their unique relationship with other organisations to assist drug offenders obtain the best possible results when sentenced by Queensland Courts.
When sentencing offenders, courts must take into account various factors. Importantly, courts look to the efforts an offender has made to address the issues at the heart of their offending behaviour. Courts look favourably upon offenders who have taken a proactive approach to addressing the issues that contributed to their offending, whether it be drug or alcohol addiction, mental illness or another concerns.
Jones + Associates’ unique relationship with a well-known not for profit organisation enables us to provide clients with access to a ‘rehabilitation co-ordinator.’ Co-ordinators use their wealth of experience and knowledge to refer clients to a range of targeted support services. Through a personalised rehabilitation plan, clients are able to identify and begin to address issues specific to their offending. This targeted support not only assists clients in their personal development but also provides courts with definitive evidence of their rehabilitative efforts.
Jones + Associates have represented many clients with a background of illicit substance abuse or other personal issues for sentencing before the District and Supreme Courts. The assistance provided by our ‘rehabilitation co-ordinators’ has proved to be a significant factor in these clients either avoiding prison time altogether or reducing the usual sentence. Our results speak for themselves.
It has often been commented upon by Judges the significant and impressive nature of our clients rehabilitative efforts, particularly those undertaken with the support of our rehabilitation strategy.
Should you or a loved one find themselves charged with a criminal offence and have an underlying personal issue to address, you should contact a member of Brisbane Criminal Lawyers at Jones + Associates to not only provide you with the best legal representation available but also access to the support required to address your personal circumstances.
What Do The Next Step?
Contact our experienced Brisbane drug lawyer or fill out an online contact form to hear back from a member of the criminal lawyer’s team today.