Firing workers for having a criminal record ‘is not justice’

A new legal study calls for stronger protections against criminal-record-fuelled dismissals, claiming workers are being “double punished”.

The Sydney Law School is pushing for stronger protections after a study found that a number of Australian employees are being dismissed due to criminal records that bear minimal implications or relevance to their job roles.

The paper, Collateral Damage: Unfair Dismissal as an Invisible Punishment for Employees’ Criminal Records, reports that Australia’s employment laws may be failing to actively prevent these workers who hold criminal records from being unfairly punished for their prior mistakes.

“Dismissing an employee for a criminal record that has no relationship to what they do for work is not justice. It’s double punishment,” said Associate Professor Sandra Noakes, who authored the study.  

“The criminal justice system already imposes penalties. Workplaces shouldn’t become an extension of that system unless there’s a clear, job-specific reason.”

Criminal records are often the topic of discussion when it comes to hiring practices and the barrier they can be for jobseekers, but the study touches on the great debate of whether it’s fair to dismiss existing employees who hold a criminal record.

As previously reported by HR Leader, Sean Melbourne, director of Source Legal and Workplace, touched on the legality of these dismissals and how they can fall into the discrimination category.

“[Criminal record] laws are trying to strike a balance between the need to allow people to start over and not be held back forever by a criminal conviction, which getting a job can be a big part of, and the need to allow employers to only have appropriate people in their workplace and in particular roles,” Melbourne said.

“At a federal level, it’s considered discrimination if you don’t hire someone, or terminate someone’s employment, because of an irreverent criminal record. This will also be the case if you treat someone unequally in some other way, such as by not promoting them.”

This coincides with the law school study, which introduces a concept of “collateral consequences”, referring to the long-term, behind-the-scenes impacts that a criminal record can have on someone even for the most minor of offences.

“In most cases, employers should not be allowed to dismiss an employee because the criminal record reflects badly on the employer. Most employees are not paid to be their employer’s brand ambassadors when they are ‘off the clock’,” Noakes said.

According to the researchers, both the courts and tribunals should not assume a connection between a person’s prior mistakes and their current job performance; instead, it must be “well-articulated” as to why the record can impact the worker’s job role.

“For example, a criminal record for drink driving resulting in a worker losing their licence would be relevant if the worker was employed as a driver. A criminal record relating to vandalism might be relevant for a school teacher, who is supposed to model positive social behaviour to their students,” Noakes said.

“However, a criminal record for drink driving or vandalism may not be relevant to the employment of a bank employee, because the record is not likely to relate to the inherent requirements of the bank employee’s work.”

The report put forward the following proposals:

• A direct link should exist between the specific requirements of the job and dismissal based on a criminal record.
• Better alignment of unfair dismissal laws with anti-discrimination laws and the protection of an employee’s right to a personal life.
• A reduction in “invisible punishments” that prevent reintegration after justice has been served. 

Kace O'Neill

Kace O'Neill is a Graduate Journalist for HR Leader. Kace studied Media Communications and Maori studies at the University of Otago, he has a passion for sports and storytelling.