Navigating your employer's right to know

28 June 2017

Do employers have the right to know about employees' criminal charges? The Supreme Court has found that an employer often will have the right to know, even if there is a suppression order.

"X" was employed by the University of Otago as a campus security guard. While employed, he faced charges of willful damage and assaulting his wife. X pleaded guilty but the judge discharged him without conviction on both charges because it was "extremely likely" he would otherwise lose his job. The judge also made a suppression order prohibiting publication of X's name or identification.

As it happened, the deputy proctor of the University of Otago had been tipped off that X was being sentenced that day and was watching in court.

The deputy proctor then sought legal advice regarding the suppression order. He was told the suppression order did not cover communicating information to genuinely interested people on a one-to-one basis. The lawyer also said the employer had a legitimate interest in knowing about the charges when the employee pleaded guilty to a charge involving the type of behaviour the employee is engaged to prevent.

Following this advice, the deputy proctor discussed X's charges and the court's response with appropriate university personnel. The university undertook an investigation and X was suspended until the vice-chancellor reached the provisional view that a final written warning was appropriate.

X raised a personal grievance with the vice-chancellor, claiming he had been unjustifiably disadvantaged, first by his suspension and secondly by the final written warning.

The Employment Relations Authority found that X was unjustifiably disadvantaged by the final warning but not by his suspension. The authority decided the university had breached the suppression order and its actions were not those of a fair and reasonable employer.

Following a string of appeals, the Supreme Court held that when an employee's criminal charges are relevant to their employment, the employer has a right to know and act on information that may otherwise be subject to non-publication orders. Given X's role at the university, his employer had a legitimate interest in knowing that he had committed a violent offence.

The Supreme Court confirmed "publication" means distribution to the public at large, not communication "to persons with a genuine interest in conveying or receiving the information". It was held that X had not been unjustifiably disadvantaged.

The outcome of this important case is that publication for the purposes of a suppression order does not include telling someone with a genuine interest on a one-to-one basis. A person with a genuine interest will generally include an employer where the offence is related to the duties performed by the employee.

This principle is most likely to come into play with dishonesty offences. Where an employee in a position of trust is found guilty of an offence like fraud, theft, or blackmail, the employer will have a right to know as it is relevant to the employment. In such a situation, by failing to disclose this information to their employer, the employee will be in breach of their obligation of good faith.

Similar issues can arise during the recruitment process. If an employer asks an applicant for a job to disclose their criminal convictions, the individual can face termination later on if they fail to do so. Convictions that are subject to the Clean Slate Act are, of course, not required to be disclosed.

In an earlier employment case, William Hart was dismissed seven weeks into his employment with Printlounge Ltd for failing to disclose three assault charges, including a conviction for robbery-related assault charges, the murder of a woman, and a number of other charges.

In the job interview Hart informed the employer he had served two years in prison for assault, painting the event as a one-off occurring at a party. The general manager then asked whether Hart had additional convictions, to which Hart replied "no".

The Employment Relations Authority stated that prospective employees do not have a general duty to voluntarily reveal past information about themselves. However, if an employer requests such information, and the applicant elects to answer, the answer must be full and honest.

Depending on the nature and seriousness of any lie, the dishonesty can be viewed as a misrepresentation which induced the employer to offer employment and has fundamentally injured the employer's trust and confidence in the employee.

Serious dishonesty, such as concealing extensive criminal records, will often entitle an employer to terminate the employment agreement. Nevertheless, in such cases it is still important that employers follow a fair process of investigation and communication with the employee. Just as honesty is the best policy for employees, diligence and proactivity provides the best protection for employers.

These cases highlight the importance of being honest and not devious. I am sure this is the morality that most readers would embrace.