OPINION

Panicking over an employee's past

It's rare for a single case to be so revealing about so many topics as was the Fair Work Commission's recent decision in the enticingly named KB v The Agency (2018). It's also rare for a commissioner to be so scathing about an employer as was Nicholas Wilson in his decision.

Then again, it's also rare for a single employer to fall into so many pitfalls, and to make so many mistakes, as did The Agency in this matter.

So what exactly did we learn from this case?

Can you sack someone for not disclosing a past criminal conviction? (Answer: not necessarily.) Photo: Shutterstock

Can you sack someone for not disclosing a past criminal conviction? (Answer: not necessarily.) Photo: Shutterstock

As I see it, the decision has three key lessons. First, it sheds light on how the commission will approach cases concerning an employee's failure to disclose information about past criminal convictions that could be adverse to their employment. Second, the case sheds light on the role of support people in employment discussions. Finally, Wilson gave us a timely reminder of what happens when an employee no longer meets the inherent requirements of their job.

But first, what was the case about?

"KB", who worked for a contracting company engaged by the Australian Public Service, lost her job with The Agency after a police check revealed a previously undisclosed criminal conviction. Before she began full-time employment with The Agency, KB was convicted of welfare fraud. This conviction followed what the commissioner described as "a profoundly challenging adult life".

Shortly after KB started working full-time, The Agency brought in a "zero-tolerance" policy for any employee with a criminal conviction after it entered into a new agreement with the Commonwealth to provide labour services. KB initially resisted providing her consent for a police check to occur, knowing it would reveal the conviction. Ultimately, she was unable to keep resisting providing her consent, with predicable consequences for her employment.

All this may sound quite reasonable to you. So how did such a scathing decision emerge?

As is often the case, the success of any attempt to terminate someone's employment – no matter how much it would seem the employee's conduct might merit that course of action – depends substantially on the integrity of the process followed by the employer. In this instance, The Agency failed in multiple respects to follow proper processes, leading to the finding that KB was unfairly dismissed.

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Let's start with possibly the most egregious of The Agency's shortcomings: its approach to the disclosure of potentially adverse information.

The starting point for Wilson (the commissioner) was assessing whether the "zero-tolerance" policy was, as The Agency said, warranted on the basis of its agreement with the Commonwealth. No prizes for guessing Wilson's conclusion.

Having dispensed with The Agency's contention that it needed to adopt a "zero-tolerance' policy on employees' criminal convictions, Wilson considered whether KB's failure to disclose her conviction, including her resistance to consenting to a police check, merited her sacking on the grounds of a breach of trust.

This is where his decision became particularly illuminating. Wilson held he was "unable to find that [The Agency] held a valid reason for her termination of employment, irrespective of whether or not it may said that the [zero tolerance policy was] operative and binding on KB".

This is a particularly interesting development for lawyers representing clients whose employers have accused them of failing to disclose adverse information. The decision suggests that a mere failure to disclose such information does not necessarily merit a sacking, even if there is a policy in place to that effect. This decision is also a warning to employers: policies without reasonable justification will not shield them from unfair-dismissal claims.

The second lesson in Wilson's decision concerns the proper role and function of a support person during employment discussions.

The Agency argued that KB's manager acted as her support person during the meetings between KB and The Agency before she was sacked. Though nothing ultimately turned on the issue, this argument brought the most scathing rebuke from Wilson. He found that the "proposition that, in the absence of a request from the employee concerned, that their manager could be a support person of the nature envisaged by the Fair Work Act is as unworthy as it lacks credibility".

Wilson ultimately concluded that The Agency would have served its "cause better by simply saying that the offer [of a support person] was never made, rather than looking somewhat silly by suggesting that the person's manager ... was the support person for the employee in the matter". Wilson also shed some light on the actual function of support people, noting they "may suggest things to say ... or even advocate when the employee is unable to".

The take-away message from this part of the decision is that, as Wilson said, support people are not merely there to "offer tissues when bad news is communicated". They perform a substantive role for employees during disciplinary processes, and employers wishing to defend unfair-dismissal claims would be wise to treat their role as such.

The final lesson from this decision is the timely reminder that, even when an employee no longer fulfils an inherent requirement of their job, their employment does not automatically cease. Rather, it remains a positive act of their employer to terminate the employment.

This could have interesting implications for public servants and certain contractors in the APS if, for example, they lose the requisite security clearance to perform their position. Though it seems like a simple, if semantic, distinction – the employee loses their job either way – the distinction could have potentially far-reaching consequences for former employees and employers alike.

Overall, cases such as KB v The Agency form important elements of the tapestry that makes up employment rights and responsibilities. Employers, employees and their lawyers would do well to learn from this one.

John Wilson is the managing legal director of BAL Lawyers and an accredited specialist in industrial relations and employment law. He thanks his colleague, Robert Allen, who helped prepare this article. ballawyers.com.au